McGuill v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 26 November 2012
• Neutral Citation: [2012] IEHC 519
• Court: High Court
• Date: 26 November 2012

[2012] IEHC 519

THE HIGH COURT

[No. 264 J.R./2012]

McGuill v Min for Justice & Ors

BETWEEN

JAMES McGUILL

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

GARDA SIOCHANA (COMPENSATION) ACT 1941 S6

MACAULEY v MIN FOR POSTS & TELEGRAPHS 1966 IR 345

BLEHEIN v MIN FOR HEALTH & ORS 2009 1 IR 275 2008 2 ILRM 401 2008/3/594 2008 IESC 40

GARDA SIOCHANA (COMPENSATION) ACT 1941 S6(1)(B)(i)

FLYNN v MEDICAL COUNCIL UNREP HOGAN 22.11.2012 2012 IEHC 477

LYNCH, STATE v COONEY & AG 1982 IR 337

KIBERD & CAREY v JUDGE HAMILTON 1992 2 IR 257 1992 ILRM 574 1992/3/654

GARDA SIOCHANA (COMPENSATION) ACT 1941 S6(1)(B)

MCGEE v MIN FOR FINANCE 1996 3 IR 234 1997 1 ILRM 301 1996/6/1704

MERRIGAN v MIN FOR JUSTICE UNREP GEOGHEGAN 28.1.1998 1998/26/10336

GARDA SIOCHANA (COMPENSATION) ACT 1941 S6(1)(B)(iii)

Compensation - An Garda Siochána - Consent - Consent to proceed with claim refused - Appeal - Character of injuries - Special risk

Facts: The applicant was a member of An Garda Siochána who had been refused consent under s. 6(1)(b)(i) Garda Siochána (Compensation) Act 1941 to proceed with a claim of compensation for occupational injuries. The application was refused on the ground that the Minister was of the opinion that the injuries were of a minor character and were sustained in the course of a duty not involving special risk.

This appeal analysed whether the decision was factually sustainable and not unreasonable.

Firstly Hogan J considered whether the injuries were of a minor character. Applying the test laid down in Merrigan v Minister for Justice [1998] IEHC 11 he held that judging the nature of the injury by that standard the Minister was entitled to conclude the injuries were of a minor nature. McGee v Minister for Finance [1996] 3 IR 234 and Merrigan v Minister for Justice [1998] IEHC 11 applied.

The applicant was however entitled to sue if these minor injuries were sustained in the course of an operation attracting special risk. No reasons had been given in the refusal as to why the operation was not deemed to be one which involved a special risk.

The decision was quashed on the issue of special risk and was remitted to the Minister to allow the applicant to make a submission on the issue.

1 JUDGMENT of Mr. Justice Hogan delivered on the 26th day of November, 2012

2 1. Section 6 of the Garda Síochána (Compensation) Act 1941 ("the Act of 1941") is a most unusual statutory provision in that provides that, save in cases involving a fatality, the prior consent of the Minister for Justice is required before an applicant member of An Garda Síochána can present his or her claim for compensation arising out of occupational injuries to this Court. Whether the Oireachtas can constitutionally limit access to this Court in this fashion is a matter which may yet have to be considered in another case at some later juncture, not least having regard to decisions such as Macauley v. Minister for Posts and Telegraphs [1966] I.R. 345 and Blehein v. Minister for Health [2008] IESC 40, [2009] 1 I.R. 275

3 2. The present case concerns the application of s. 6(1)(b)(i) of Act of 1941. This sub-section provides that:-

"Whenever an application is duly made to the Minister for compensation under this Act, the following provisions shall have effect, that is to say:-"

4 a … (b) if the application is in respect of injuries not causing death, then -

5 (i) in case the Minister is of opinion that such injuries are of a minor character and were sustained in the course of the performance of a duty not involving special risk, the Minister shall refuse the application…"

6 3. The key words here are the requirement that the Minister must be "of opinion". As I pointed out in a very recent judgment delivered within the last few days, Flynn v. Medical Council [2012] IEHC 000, the use of these words is generally understood to import the triple requirement that the decision-maker must act in a manner which is bona fide, factually sustainable and not unreasonable: see, in particular, the judgments of O'Higgins C.J. and Henchy J. in The State (Lynch) v. Cooney [1982] I.R. 337 and that of Blayney J. in Kiberd v. Hamilton [1992] 2 I.R. 257.

7 4. But, as we shall presently see, the application was refused on the ground that the Minister was of opinion that the injuries were of a minor character and that the injuries were sustained in the course of a duty not involving special risk. There are two distinct issues here which may ultimately overlap. First, the Minister must properly understand and define the relevant statutory terms ("injuries of a minor character", "duty not involving special risk"). This question of statutory interpretation is one of pure vires, so that if the Minister were to misconstrue these terms, the ensuing decision could not properly stand. Second, if, however, the Minister has properly defined these terms, then his application of this definition to the facts (i.e., the process which is involved in the Minister forming the requisite statutory opinion) is governed by the triple requirements enunciated by the Supreme Court in Lynch. Since the Minister's bona fides are not at issue, in essence then the question at this point is whether the decision is factually sustainable and not unreasonable.

8 5. This is the general legal background to the present application for judicial review. The application itself arises from an incident which took place almost four years ago in the early morning of 5 ^th December, 2008, when the applicant, a member of An Garda Síochána, was injured when the patrol car in which he was an observer was rammed by a jeep. On 23 ^rd December, 2008, Garda McGuill submitted an application seeking compensation under the Garda Síochána (Compensation) Acts 1941-1945. This application was refused by decision of the Minister dated 13 ^th January under s.6(l)(b) of the 1941 Act on the ground that the injuries in question were of a "minor character" and were not sustained in the course of the performance of a duty involving a "special risk.".

9 6. There is, of course, no doubt at all but that Garda McGuill sustained personal injuries as a result of the incident which was doubtless unpleasant and frightening. He was a backseat passenger in a patrol car and as he was getting out of the car,...