Kampff -v- Minister For Public Expenditure and Reform, [2018] IEHC 371 (2018)

Docket Number:2016 No 383 SP
Party Name:Kampff, Minister For Public Expenditure and Reform
 
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THE HIGH COURT

GARDA COMPENSATION[2016 No. 383 SP]

BETWEEN:

NIALL KAMPFFAPPLICANT-AND-

MINISTER FOR PUBLIC EXPENDITURE AND REFORMRESPONDENT

JUDGMENT of Mr. Justice Twomey delivered on the 25th June, 2018

Summary – how to put a monetary value on pain and suffering?

  1. This case concerned a claim by the applicant, Garda Kampff, for compensation in respect of a soft tissue injury to his hand. Counsel for Garda Kampff relied on the Book of Quantum to urge on this Court an award of circa €21,700. As noted in detail hereunder, Garda Kampff sustained bruising to his hand when he struck it against shelving while trying to arrest a suspect. He did not require pain medication or physiotherapy, but he was given anti-inflammatories and his hand was strapped and he was on sick leave for five days before making a full recovery. Despite the Book of Quantum expressly providing that minor injuries to a hand have led to awards of up to €21,700, this Court concludes that the award of anything even close to this magnitude could not be justified for what was in essence bruising to the hand.

  2. This Court concludes that the appropriate amount of compensation is €5,000. While this Court is obliged simply to have regard to the Book of Quantum in civilian personal injury cases (but not in Garda Compensation cases), which means the Book of Quantum is not binding, this Court (and indeed the District Court and the Circuit Court) is obliged to follow the binding principles for the assessment of damages for personal injuries enunciated by the Court of Appeal and the Supreme Court.

  3. Applying these binding principles led this Court to an assessment of a figure of €5,000 for the pain and suffering involved, which is very different from the Book of Quantum figure urged upon this Court by counsel for Garda Kampff. Accordingly, it is important that this Court sets out these principles and the application of these principles to Garda Kampff’s case, which led to the assessment of a figure of €5,000, rather than the figure of €21,700 suggested by counsel for Garda Kampff.

  4. Accordingly, this judgment:

    • summarises the principles laid down by the Court of Appeal and the Supreme Court which this Court is obliged to apply to the calculation of how much general damages are appropriate for any personal injury, including:

    o the relevance of the average earnings for people in Ireland of €45,611 per annum or €3,800 per month, to the calculation of general damages for pain and suffering,

    o the necessity for awards for personal injuries to be proportionate to the ‘cap’ on general damages of €450,000 for pain and suffering for the most catastrophic injuries, such as paraplegia,

    o the effect of the recent downwards ‘recalibration’ by the Court of Appeal of the awards of general damages for personal injuries.

    This judgment also:

    • summarises the principles applicable to one particular category of personal injuries, namely those suffered by members of An Garda Síochána, which cost much more in legal fees than other personal injury cases because:

    o first unlike other personal injury cases, minor injuries, which are suited to being heard in the District Court or Circuit Court, must under current legislation be dealt with in the High Court, which commonly gives rise to a situation where the costs will be a multiple of the award in damages, which costs are invariably paid by the taxpayer,

    o secondly, unlike other personal injury cases, under existing Superior Court Rules, there is no incentive for Garda Compensation cases to be settled without the expense of a court hearing, thus leading to no early settlement of cases with no consequent saving on legal costs, which legal costs are, as noted, invariably all paid by the taxpayer, and

    o thirdly, unlike other personal injury cases, Garda Compensation cases are not subject to the Personal Injuries Assessment Board (“PIAB”), and so garda claims can only be processed by lawyers in the High Court at considerable expense (because of the very considerable cost of High Court litigation). Injured gardaí do not have the right of injured civilians to have their claims dealt with in the speedy and cost-efficient assessment system provided by the PIAB. This is despite the fact that the PIAB is specifically designed to deal with the type of injuries suffered by gardaí which appear before this Court (namely assessment only cases as liability is invariably not contested) and which if dealt with by PIAB could be done with little or no legal costs to the taxpayer.

    Garda Kampff’s injuries to his hand

  5. The case which led this Court to consider in detail the principles applicable to the calculation of general damages for personal injuries in general, and specifically to gardaí, is the claim by Garda Kampff for compensation for bruising to his hand, when he struck it against some shelving when he was effecting the arrest of a suspect almost five years ago on the 1st September, 2013.

    €21,700 for bruising to a hand?

  6. In this claim, counsel for Garda Kampff suggested to this Court by reference to the Book of Quantum published in 2016 (the “Book of Quantum”) that the appropriate award of compensation/general damages for pain and suffering for Garda Kampff should be in the region of €21,700.

  7. Garda Kampff’s claim for compensation is made under the Garda Síochána (Compensation) Act, 1941 (the “1941 Act”), as amended by the Garda Síochána Compensation (Amendment) Act, 1945 (the “1945 Act”), both of which are referred to as the “Garda Compensation Acts”. As noted hereunder, under these Acts, Garda Kampff is entitled to the same level of general damages for the pain and suffering he experienced as any other plaintiff would be entitled to, in a personal injury claim against a third party.

  8. It is the fifth claim that Garda Kampff has made under the Garda Compensation Acts, the first was made in relation to a kick to his hand leading to a fracture and Post Traumatic Stress Disorder in relation to a bite injury from the one incident in 1993. The second claim was in 1995 and related to a road traffic accident at work and resulting in severe anxiety which he suffered thereafter. The third claim related to facial abrasions and conjunctivitis from a road traffic accident at work in 1996. The fourth claim related to a soft tissue injury to his scrotum in 1997.

  9. As regards the particulars of the current injury to Garda Kampff, an MRI confirmed that he had not sustained a fracture to his hand but sustained some bruising of the bone. His hand was strapped and put in a sling and he was given anti-inflammatories. He did not require any pain medication, nor did he require any physiotherapy. Garda Kampff was on sick leave for five days. He fully recovered from the injury within a short time of the incident and had no long-term effects. However, Garda Kampff stated in his evidence that it was one year before his hand was fully better. Special damages of €1,185 for Garda Kampff were agreed between the parties.

  10. In order to consider whether the amount suggested by counsel for Garda Kampff is an appropriate award for general damages, which is essentially an amount for the pain and suffering incurred by Garda Kampff as a result of his hand injury, this Court will consider:

    1. Garda compensation claims for personal injuries, and

    2. The mechanics of calculating damages for all personal injuries.

    3. GARDA CLAIMS FOR PERSONAL INJURIES11. Every Monday during the legal term, this Court assesses the amount of compensation payable to members of An Garda Síochána who are injured during the course of their duties, i.e. how much is appropriate to compensate an injured party for the pain and suffering caused by the injury. The injuries in question can range from relatively minor injuries (such as a non-bony injury to a finger) to life changing injuries. Thankfully, the vast majority of claims heard in this Court belong to the first category.

  11. It is beyond question that each of the plaintiffs before the Court are entitled to compensation for their injuries just as in appropriate cases, civilians may be entitled to compensation for injuries suffered during the course of their employment. Indeed to date, this Court has been struck by the bravery of the gardaí, who on a daily basis risk their lives, and are injured in so doing, in order that members of the public can live peaceful lives.

  12. The purpose of this judgment is to outline the principles which this Court is obliged to apply in the assessment of damages for injured gardaí, particularly for minor injuries, since it is a peculiarity of the statutory compensation scheme for gardaí that all injuries to gardaí, once they were maliciously inflicted and are not so minor as not to be approved for compensation by the Minister for Justice and Equality under s. 6 of the Garda Compensation Acts, are dealt with by the High Court.

  13. It is anticipated that the principles set out hereunder will allow injured gardaí and their legal advisers, as well as the Department for Public Expenditure and Reform, which is the respondent in all such claims and the payer of the compensation, and its legal advisers understand how this Court is obliged to calculate awards. In this way it is hoped that the statement of these principles will facilitate the settlement of these Garda Compensation cases and ultimately lead to a saving in legal costs to the State, since as noted below, invariably it is the State which pays not just its own legal costs but also the legal costs of the injured garda.

    1% settlement rate in garda cases v. 90% settlement rate in civilian cases

  14. However, as noted hereunder due to what would appear to be an oversight, there is not the same incentive for lawyers to settle Garda Compensation cases as there is for other personal injury claims and hence there is a very low settlement rate of these compensation claims. Indeed, since taking over the Garda Compensation List at the start of 2018, this Court can only recall...

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