Louise Lourdan v Minister or Public Expenditure and Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 19 January 2015
• Neutral Citation: [2015] IEHC 75
• Court: High Court
• Date: 19 January 2015

[2015] IEHC 75

THE HIGH COURT

[No. 637 SP/2013]

Lourdan v Min for Public Expenditure

IN THE MATTER OF THE GARDA SIOCHANA (COMPENSATION) ACTS 1941 - 1945

BETWEEN

LOUISE LOURDAN

APPLICANT

AND

THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM

RESPONDENT

GARDA SÍOCHÁNA

Compensation

Assault and battery - Injuries sustained in effort to effect arrest - Physical and mental injuries - Soft tissue injuries - Dental injuries - Cost of treatment - Actuarial evidence - Real rate of return - Post traumatic stress - Russell v Health Service Executive [2014] IEHC 590, (Unrep, Cross J, 18/12/2014) considered - Damages awarded (19/1/2015 - Barton J - 19/1/2015) [2015] IEHC 75

Lourdan v Minister for Public Expenditure and Reform

Facts: In the case at hand, the applicant a member of the Garda, sustained a number of injuries whilst apprehending two suspects. She sought damages.

Held by Justice Barton in light of the available evidence and submissions presented that he was satisfied that the applicant had sustained both physical and psychological injuries as a result of the assaults giving rise to these proceedings. The physical injuries were of two types. Soft tissue affecting the left side of her face, her neck, lower back and lower legs but also dental injuries affecting two of her molars, one pre molar, and her left central upper incisor. In light of the medical evidence submitted, special damages were agreed between the parties in the sum of €14,373.54. It was further determined that the cost of €6,500 would be added to the agreed sum for future dental care. Thus, the Court awarded special damages in the amount of €20,873.54. With regard to general damages the court awarded €85,000 in respect of past pain and suffering and €50,000 in respect of future pain and suffering making in total by way of general damages the sum of €135,000. Accordingly the court made a total award in respect of the applicant”s claim for general and special damages in the sum of €155,873.54.

1 1. The applicant was born on the 27 ^th April, 1973. Having obtained a diploma in computer programming she joined the force as a student garda in 1993 and passed out of Templemore College.on the 4 ^th August, 1994. Thereafter the applicant served in a number of stations throughout south Tipperary. She is currently stationed in Cahir. She has a daughter, Ciara, who was born in 2001. At the time of the incident giving rise to these proceedings on the 20 ^th November, 2007 the applicant was assigned to work in the Garda Traffic Corps. She was a garda patrol car driver. Since 2011 the applicant has been assigned to and occupied the position of a court presenter. She took up that position when a vacancy arose. She set about reorganising that office and has made the role, which she enjoys, her own.

2 2. On the 13 ^th November, 2007 she was on duty as an observer in a marked garda patrol car driven by her colleague, Garda Mark Darmody on the old Cashel to Cork road. Whilst on patrol they recognised the driver of a car who was known to them to be involved with illicit drugs. There was a female passenger in that car. A siren and lights were activated with the intention of making the driver of that vehicle aware of the presence of the garda patrol car and of the fact that the car was to pull over. The reaction of the driver, however, was to take off at speed. The applicant gave evidence that the driver of the car whom they were trying to apprehend drove in a highly dangerous manner. In this regard there was evidence that the driver failed to observe a stop sign, drove diagonally through a junction without yielding right of way to oncoming traffic, appeared to pay no heed nor to have any regard whatsoever for other vehicles on the road, whether stationary or moving, struck a number of vehicles with glancing blows, struck a concrete pillar, and despite having sustained a blowout, kept driving at such a speed that the wheel rim of the deflated tyre became exposed to the road surface leaving sparks behind it. Eventually the car could proceed no further and came to a halt.

3 3. The female passenger exited the car and she was chased and apprehended by the applicant. Meanwhile the driver of the car was apprehended by Garda Darmody.

4 4. It became apparent almost immediately that both the driver and the passenger were under the influence of drugs. They were both physically and verbally abusive. In an attempt to arrest the female passenger the applicant sustained a very severe blow to the left hand side of her face from what appears to have been a large heavy handbag. The female passenger was extremely violent. The applicant was concerned that her assailant would head-butt her so she kept her assailant at arms length by gripping both of her arms. Her assailant spat at her and being unable to head-butt the applicant struck out with one or other of her feet kicking the applicant on the backs of her legs. It transpired from the evidence that the applicant was also the subject of an assault and battery by the car driver when she went to the assistance of her colleague Garda Darmody. For her troubles the applicant received a number of heavy blows again to the left hand side of her face and also to her neck. It appears from the evidence that the straggle between the gardaí the driver and his passenger was only ultimately brought under control when, on a request for help by Garda Darmody, two young men from a part of a crowd that had gathered round, came to their assistance. A call for garda assistance to the local station had by then also been made. Ultimately further members of the gardaí arrived at the scene and brought the situation under control. The applicant estimated the duration of the struggles described in evidence to have been at least twenty minutes.

The injuries.

5 5. The applicant was both physically and mentally traumatised by her involvement in what was a prolonged verbally abusive and physically violent assault and battery upon her person the consequences of which I am quite satisfied continue to affect her to this day.

6 6. The applicant has been examined and reported upon by Dr. Sean McCarthy, Dr. James Morrison, Professor Michael Molloy, Mr. Daniel O'Connell, and Professor Duncan Sleeman and from whom reports were obtained for the assistance of the court and which have been exhibited in the applicant's affidavit.

7 7. The applicant was also examined and reported upon for the respondent by Dr. Tom Walsh, the chief medical officer, by Dr. Pat O'Neill, and by Dr. Devitt, consultant psychiatrist. The admission of all reports into evidence was agreed between the parties.

8 8. The applicant was brought to South Tipperary General Hospital, Clonmel where she was examined; X-rays were taken of her skull, neck and facial bones. She was informed that there was no evidence of any bony injury or fracture. She attended her GP Dr. Quirke on the day following the incident. Dr. Quirke recorded the following in his notes:

"Involved in a dreadful situation last night. She and her partner chased a vehicle and apprehended two people who fought them. Louise tells me she sustained blows to the left side of her face and neck. She also sustained kicks to her legs. She was seen in A & E and x-rayed etc. On examination tender left zygoma and TMJ. Some clicking of her TMJ but movement ok. Tender neck muscles at that side. Impression…bruising and muscle sprain injuries."

9 9. A report from Dr. Sean McCarthy dated the 22 ^nd November, 2007 describes the applicant attending him on the 15 ^th November, 2007 and that clinical examination showed the applicants face to be extremely swollen with a haematoma and marked swelling under her left eye accompanied by very marked tenderness over the left maxilla; the applicant was also complaining of difficulty in chewing and swallowing.

10 10. Clinical examination of the applicants cervical spine showed extreme stiffness and global movements where reduced to 40% of normal with extreme tenderness in the left and right paravertebral muscles and over the left supraspinarus and left deltoid muscle. Bruising was noted on the applicant's back and on the left side of her neck.

11 11. Examination of the lumbar spine revealed forward flexion being reduced to 40% of normal with marked bruising on both gluteal areas.

12 12. Clinical examination of the plaintiff's lower legs showed tenderness over the calf muscles with marked bruising where the applicant had been kicked by her assailant.

13 13. Analgesia and pain killing medication was prescribed. Dr. McCarthy initially certified the applicant as unfit to perform any type of garda duty for at least three to four weeks. However, the effects of the injuries upon her were such that she did not ultimately return to work until the summer of 2009.

14 14. In addition to physical injuries Dr. McCarthy also reported that in his view the applicant suffered a severe psychological trauma for which she was being treated and advised that he was referring her to Dr. Morrison, consultant psychiatrist for specialist review.

15 15. Dr. Morrison prepared a report dated 7 ^th December, 2007. He diagnosed the applicant as developing a severe post traumatic stress disorder with insomnia, disturbed sleep, flashbacks, acute panic attacks, fear and apprehension about returning to her employment duties. At that time he described the applicant as having become emotionally labile where she could weep easily and was affected by the reading of any traumatic type material in the papers or whilst watching television. He advised her regarding some behaviour modification techniques. He was unable at that stage to provide a definite prognosis. The plaintiff was, however, continued on appropriate medication. He prepared a number of further reports concluding with a report dated the 8 ^th April,...