O'Hara v The Minister for Finance, Public Expenditure and Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IEHC 493
• Docket Number: [2009 No. 1093 S.P./1094 S.P./1095 S.P.]
• Court: High Court
• Date: 31 July 2018

IN THE MATTER OF AN GARDA SÍOCHÁNA (COMPENSATION) ACT, 1941 -1945

BETWEEN

JOSEPH O'HARA

APPLICANT

AND

THE MINISTER FOR FINANCE, PUBLIC EXPENDITURE AND REFORM

RESPONDENT

[2018] IEHC 493

[2009 No. 1093 S.P./1094 S.P./1095 S.P.]

THE HIGH COURT

General compensation – Pecuniary loss – Enhanced compensation – Applicant seeking compensation – Whether applicant was credible

Facts: The applicant, Detective Sergeant O’Hara, in the course of duty, was involved in three separate incidents in respect of each of which he was authorised to bring proceedings pursuant to the Garda Síochána (Compensation) Acts 1941-1945. The applicant’s case was that as a result of those incidents he suffered and sustained psychiatric injuries in the form of a post-traumatic stress disorder (PTSD). Although malice was accepted by the respondent, the Minister for Finance, Public Expenditure and Reform, the nature and extent of the injuries and consequential pecuniary losses claimed by the applicant were hotly disputed. The controversy on the medical evidence centred on whether or not the applicant had suffered a PTSD and whether or not the stressors arising contributed to the subsequent development of a serious cardiovascular condition. The pecuniary losses claimed in aggregate amounted to €48,002.83, of which the parties had agreed the sum of €10,023.47. At hearing the applicant advanced a claim for enhanced general compensation for loss of opportunity founded on the assumption that but for his injuries he would have been promoted, firstly to the rank of Detective Inspector and, subsequently, to Detective Superintendent. The applicant’s credibility was called into question by the respondent.

Held by the High Court (Barton J) that other factors were undoubtedly at play which were not causally related and needed to be taken into account when consideration was being given to the claim for enhanced general compensation for loss of opportunity in respect of promotion. Barton J accepted the medical evidence adduced on behalf of the applicant and found as a matter of probability that a PTSD was caused by and resulted from each of the incidents. Barton J held that taken at its height the medical evidence warranted no more than a finding that the PTSD symptoms were but a part of a constellation of relevant factors by far and away the most significant of which was a genetic pre-disposition to the development of the cardiac condition in question. Save in so far the symptoms of the PTSD were contributory to the development of the condition was not on Barton J’s view of the evidence causally related to the incidents, accordingly, to such extent as it may be taken into account at all by the Court that should be by way of general compensation. Barton J considered a fair and reasonable sum commensurate with and attributable to his injuries to compensate the applicant in respect of his claim for loss of opportunity was €85,000. Barton J held that in the absence of evidence to found a percentage contribution to the substantial claim for pecuniary loss made in respect of the treatment for the coronary condition it was not the function nor would it be permissible for the Court to find one of its own. Accordingly, the Court could not allow the pecuniary loss claim in relation to the applicant’s coronary condition.

Barton J held that a fair and reasonable sum to compensate the applicant for pain and suffering commensurate with and proportionate to the injuries suffered was €100,000 to which must be added the figure of €85,000 in respect of enhanced general compensation for loss of opportunity making in aggregate the sum €185,000 to which must also be added the sum of €10,023.14 agreed between the parties in respect of pecuniary loss making in total €195,023.14.

Relief granted.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 31st day of July, 2018

1 The Applicant was born on the 17th May, 1962, and by occupation is a Detective Sergeant in An Garda Síochána. He is divorced from his wife whom he married in 1989. There were three children of the marriage. In the course of duty he was involved in three separate incidents in respect of each of which he has been authorised to bring proceedings pursuant to the Garda Síochána (Compensation) Acts, 1941-1945. The Applicant's case is that as a result these incidents he suffered and sustained psychiatric injuries in the form of a Post-traumatic Stress Disorder (PTSD). No physical injuries were sustained in any of the incidents. In the circumstances it was agreed that the three sets of proceedings would be taken and heard together; accordingly, a single judgement is being delivered.

2 Although malice was accepted by the Respondent, the nature and extent of the injuries and consequential pecuniary losses claimed by the Applicant were hotly disputed. The controversy on the medical evidence centred on whether or not the Applicant had suffered a post-traumatic stress disorder and whether or not the stressors arising contributed to the subsequent development of a serious cardiovascular condition. The pecuniary losses claimed in aggregate amount to €48,002.83, of which the parties have agreed the sum of €10,023.47. At hearing the Applicant advanced a claim for enhanced general compensation for loss of opportunity founded on the assumption that but for his injuries he would have been promoted, firstly to the rank of Detective Inspector and, subsequently, to Detective Superintendent.

3 Actuaries were retained on behalf of both parties to advise on the capital value of the heads of pecuniary loss claims and in respect of which reports were prepared and furnished. Subject to the Respondent's contention that the ground work had not been made out for such claims, the reports were admitted in evidence on a reciprocal basis. I should also mention at the outset another matter of potential significance to the eventual outcome of the claim, namely, the Applicant's credibility which was called into question by the Respondent.

Vocational background

4 Attested in June, 1982 the Applicant was assigned to Sundrive Road Garda Station, Dublin. Two years later he was appointed to the Crime Prevention Unit and thereafter to the Divisional Task Force where he served from 1987. He subsequently sat the sergeant's exams which he passed and following interview was promoted to that rank in 1995. On promotion he was assigned to Gorey Garda Station where he served until 1997 when he returned to Sundrive Road Garda Station having been appointed to the rank of Detective Sergeant.

5 It is a matter of public record that before and particularly in the years since the Applicant's return to Dublin, gangs involved in organised criminal activities became intimately involved in the lucrative markets for illicit drugs, prostitution and people trafficking and that this ultimately led to the development of feuds which all too often culminated in serious injury or death to gang members or their families. It is accepted that the Applicant was centrally involved in the investigation of the criminal activities and feuding between these gangs which to the date of hearing had led to the murders of at least twenty people.

6 Of these the Applicant was the senior investigating officer in the cases of fourteen individuals whom he charged with murder. Not surprisingly his role in the investigation and prosecution of these cases marked him out for special attention not only amongst his colleagues but also amongst the feuding gangs who were not best pleased and led to the incidents which gave rise to these proceedings.

The Incidents

7 The first incident occurred on the 17th October, 2000, following a bail hearing in Dublin. The Applicant was escorting a prisoner to the Bridewell Garda Station. He was a member of a well-known criminal gang. He had seven previous convictions; four for assaulting Gardaí and three for possession of firearms. He had a known propensity to violence. Earlier that day he had assaulted the Applicant following a court hearing at which his brother-in-law had been refused bail and as a result of which he was arrested. At the Bridewell the prisoner threatened the Applicant that he was going to have him shot. This was not an idle threat. The prisoner had the propensity and the capacity to see that it was executed and about which the Applicant was acutely aware.

8 Engendering fear and intimidation amongst the community in which the gangs operated was a core feature of their modus operandi, most commonly in the form of kidnappings and beatings. Some months later, in February, 2001 the Applicant learned that a well-known assassin had been supplied with two automatic weapons and offered IR£5000 to shoot witnesses and a member of the Gardaí. This intelligence came from a reliable source; the Garda to be shot was identified as the Applicant. The seriousness with which the threat was takes was underpinned by the very real precautions which he undertook with regard to personal security which included carrying a firearm 24 hours a day; the Applicant even slept with a gun under his pillow. In addition his home was surveyed by a crime prevention officer and the alarm system was upgraded.

9 The Applicant gave evidence that externally his reaction to the threat was consistent with a culture in the Gardaí, particularly in his unit, described as “macho”; however, inwardly his reaction was very different. He started experiencing difficulties with sleep and noticed that he was becoming agitated and obsessive about security. He described waking up with ‘panics’ which were followed by an inability to get back to sleep. The disturbed sleeping pattern worsened and he began to feel very fatigued at work. He described himself as being anxious, irritable and jumpy. On the 11th June, 2001, at his wife's suggestion he attended his GP. Dr. O'Brien noted complaints of significant distress and on examination found...