Linda Nolan v Irish Prison Service and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 18 February 2015 |
| Neutral Citation | [2015] IEHC 101 |
| Court | High Court |
| Date | 18 February 2015 |
[2015] IEHC 101
THE HIGH COURT
BETWEEN
AND
Prison officer - Occupation injury - Occupational injuries scheme - Absence from work - Application for certificate that absence arose owing to occupational injury - Assaulted in a prison riot whilst on duty - Injuries sustained - Certiorari - Whether decision unreasonable, irrational and contrary to fair procedure - Causation
Facts The applicant is a prison officer employed by the first respondent, the Irish Prison Service, an executive agency of the second respondent, the Minister for Justice and Equality. The proceedings concerned a challenge to a decision made by the respondent refusing benefit of an occupational injuries scheme for a specified period during which the applicant was off work. The respondent refused her application for certification that her absence commencing in February 2010 and ending November 2010 arose as a result of occupational injury. She was given leave to apply for certiorari quashing said refusal. She argued the respondent had failed to determine her application for certification in accordance with the law; that the decision was unreasonable and irrational and contrary to fair procedure and that the procedures employed were ultra vires. In December 2005 the applicant was injured as a result of a violent assault during a prison riot whilst she was on duty. She sustained several injuries to her head, face, neck and body. She complained of ongoing back pain as a direct result of the incident. The respondent denied the causative connection and alleged the applicant had a pre-existing condition. She was absent for several additional periods all of which arose as a result of her injury and were certified by the respondent as occupational injuries. Circular 6/1997 concerned the management of sick leave. The process had significant consequences for her income, pension rights and her claim for compensation in the Criminal Injuries Compensation Board. The applicant further argued the respondent was obliged to give reasons for its decision to refuse certification.
Held The judge held the dicta suggested there was no stand-alone duty to give reasons but that there was a more general obligation on a deciding body to act reasonably and to be seen to have acted reasonably. The judge said the medical evidence had to be weighed by a person sufficiently qualified to understand, assess and give an informed and professional view on the question of causation. He concluded that the reliance by the respondent on the Chief Medical Officer's view was rational and necessary. The judge therefore rejected the argument that the personnel officer ought to have himself considered the medical reports and made judgement himself on the primary material. The judge made an order for certiorari quashing the decision of the first respondent stating the review process did not comply with the principles of natural justice and that the question of causation had to be determined on review.
-The judge remitted the matter for further consideration by an independent body and sought to ask the question whether all or some of the injuries complained of were required to flow from the incident at work in order to achieve certification.
1. The applicant is a prison officer employed by the first respondent, an executive agency of the second respondent. These proceedings challenge a decision made by the respondent refusing benefit of a scheme for the treatment of occupational injury for a period when she was absent from work, from the 28 th February, 2010 to the 25 th November, 2010. Three earlier periods of absence had been certified as suitable for certification under the occupational injuries scheme and the applicant challenges the exclusion of the later period from that scheme.
2. On the 26 th December, 2005 the applicant was injured as a result of an assault perpetrated on her in the course of a riot which occurred in St. Patrick's Institution while she was on duty. She suffered quite a traumatic and violent assault when she found herself isolated from her colleagues and locked into a small area between the exit of the prison and the entrance to the yard. As a result of the attack she suffered injuries to her face, head, neck and body. It is the injury to her back that has given rise to these proceedings, and in summary the applicant complains that ongoing pain in her lumbar spine is a direct result of the incident and can properly be classified as an occupational injury. The respondent denies this causative connection, and argues that some of the conditions of which she complains and the treatments that she has received, are more properly attributable to a pre-existing condition.
3. The applicant was absent from work for a period from December 2005 immediately after the accident to June 2006, for a short period between August 2006 and September 2006 and then from the 19 th January, 2007 to the 6 th November, 2007, each of which period of absence was accepted by her employer as arising due to the injury caused to her in the assault, and each was certified by the first respondent as being an occupational injury.
4. By order of Peart J. made on the 2 nd December, 2013 the applicant was given leave to apply for certiorari quashing the decisions of the first respondent made on the 25 th April, 2013, the 30 th May, 2013, and the 13 th November, 2013 refusing her application for a certificate that her absence from February 2010 to November 2010 arose as a result of an occupational injury. Leave was also given to seek a declaration that the first respondent failed to determine the application for the certificate in accordance with law, that the decision was unreasonable and irrational, was made contrary to fair procedure and that the procedures employed were ultra vires the agreed occupational procedures established by various circulars issued by the second respondent.
5. Leave was given to seek judicial review on all of the grounds pleaded and because these run to 22 grounds in all, and overlap to a great degree, I will consider them as they arise in the course of this judgment.
6. The application made by the applicant that her period of absence be recognised for the purposes of the occupational injuries scheme was made pursuant to Circular 6/1997, one of a series of circulars issued by the Department of Finance that govern entitlement and procedures in this area. The relevant provision of the Circular states as follows:-
"If the Personal Officer is satisfied that a period of sick leave arose as a result of an occupational injury or disease, and that the injury or disease was not due to negligence on the part of the officer, that period will not normally be combined with a period of absence due to ordinary illness so as to adversely affect sick pay entitlement …"
7. The purpose of the scheme, as set out in the elaborate circulars that have issued from time by the Minister for Finance, is to permit the management of sick leave in the civil service, for the purpose of inter alia pay, promotion and pension entitlements, such that a period of absence certified as having arisen from an occupational injury is discounted when calculating the total amount of sick leave that a person has had in a given relevant period
8. The applicant argues that the scheme for the certification of occupational injury requires that the decision to award a certificate must be made by the personnel officer, and that in doing so he or she must consider all reports and other material before him or her. That proposition cannot be controversial, and the scheme clearly sets out the role as being one for the personnel officer. It scarcely bears repeating that the personnel officer will not have any sufficient medical expertise to determine the question of whether a particular injury or sequelae therefrom arises as a result of an incident or injury that occurred during the applicant's employment, and the replying affidavit, sworn on the 18 th February, 2014, of Sean O'Sullivan, an assistant principal officer in the Staff and Corporate Services Directorate (formerly the HR Division) of the Irish Prison Service, the first respondent, avers that the decision to refuse to certify the applicant's absence was "based on" the advice received from the Chief Medical Officer (the "CMO").
9. The affidavit of O'Sullivan explains the process for the determination of applications for the certification of occupational injury on application by an employee of the Prison Service. He states that the majority of applications require the assistance and advice of the CMO who provides a service to the public service in general.
10. The Office of the CMO has a number of functions, explained in an affidavit of Dr. Thomas Donnelly sworn on the 17 th February, 2014, a member of that Office. The Office carries out a number of functions including the function of advising on applications for certification of occupational injuries. It employs a number of doctors and other medically trained personnel, and Dr. Donnelly himself was a specialist in occupational medicine. The CMO conducts what is described as "face to face assessments" of applicants, reviews their medical history, carries out medical examination of employees and forms a conclusion on the basis of clinical assessment and documentation whether an injury alleged to render an employee unfit for work was caused in the course of the employee's duty. The focus, having regard to the purpose of the assessment, is to...
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Case Number: ADJ-00019998. Workplace Relations Commission
...The respondent’s solicitor requests that the adjudicator should be guided by the decision of Nolan v Irish Prison Service and anor (2015) IEHC 101 where the court acknowledged the legitimacy of the respondent relying on the Chief Medical Officer’s assessment on the complainant’s ill health ......