Melody v O'Connor ; Melody v Molloy
| Jurisdiction | Ireland |
| Judge | Mr. Justice Heslin |
| Judgment Date | 18 May 2022 |
| Neutral Citation | [2022] IEHC 469 |
| Year | 2022 |
| Court | High Court |
| Docket Number | [CIRCUIT COURT RECORD No. 2018/00868] |
[2022] IEHC 469
[CIRCUIT COURT RECORD No. 2018/00868]
[CIRCUIT COURT RECORD No. 2018/00832]
THE HIGH COURT ON CIRCUIT
Entitlement to bring proceedings – Quantum – Garda Síochána (Compensation) Act 1941 – Plaintiff seeking to bring proceedings – Whether the plaintiff was required to make an application under the Garda Síochána (Compensation) Act 1941
Facts: Mr Downing SC, on behalf of the third defendant, the Motor Insurers Bureau of Ireland (MIBI), made clear that, in a judgment delivered on 29 May 2020 in Mongan v Mongan & MIBI [2020] IEHC 262, McDonald J determined that the MIBI Agreement 2009 can address negligence and malicious, or deliberately-caused, acts. The argument put forward by the third defendant was that the MIBI is a (or the) “fund of last resort”. It was submitted that the relevant Directives require the putting in place by Member States of a body to process and deal with claims concerning uninsured and untraceable drivers and it was contended that, because the MIBI is a “fund of last resort”, it is incumbent on persons to first seek compensation from other sources, in this case, the source being a claim pursuant to the Garda Síochána (Compensation) Act 1941. Reference was made during Mr Downing’s submissions to the so–called “1% Rule” (i.e. even if 1% of liability is found to attach to an uninsured driver, the MIBI does not escape liability). It was contended that each incident in this case was a deliberate and malicious act and that, as such, the plaintiff, Mr Melody, “had an option to bring a claim under the Garda Compensation legislation”. Mr Downing went on to acknowledge that time-limits for Garda Compensation scheme claims are limited under the 1941 Act. He also accepted that the Minister could have refused an application for compensation, had it been made under the Garda Síochána (Compensation) Act 1941. His submission was that this issue could and should have been addressed by, where necessary, the issuing of a “protective writ” or protective proceedings.
Held by the High Court (Heslin J) that there was no statutory provision or principle or authority which had been put to the Court which made it explicit that the plaintiff was ever required to make an application under the 1941 Act; he had that right, but he did not have that obligation. Heslin J saw nothing in the 1941 Act which is consistent with an interpretation that it was mandatory for a member of An Garda Síochána who might qualify, to proceed to make an application pursuant to the 1941 Act (as opposed to deciding not to make such an application but, instead, to issue proceedings). Heslin J took the view that, on the facts, the plaintiff, not having applied to the Garda Compensation Scheme, was not someone entitled to receive benefit. Furthermore, the extent of the entitlement under the 1941 Act is an entitlement, it seemed to Heslin J, to apply. Heslin J observed that s. 7.1 of the 1941 Act makes clear that the first ‘hurdle’ to be cleared by an applicant is one which he cannot clear as of right; rather, it is for the Minister to authorise, or not, the bringing of such an application. For that reason, in particular, Heslin J was satisfied that the plaintiff was not someone covered by Clause 4.4 of the 2009 Agreement.
Heslin J held that the plaintiff was entitled to bring the proceedings. Quantum was agreed by the parties.
Judgment approved.
Ex Tempore judgment of Mr. Justice Heslin delivered on 18 th day of May 2022
. The following is a decision in relation to the first issue in respect of two inter-linked appeals, and it is appropriate to deal with it first (i.e. before the issue of quantum). As to the submissions made by Mr. Downing SC, on behalf of the MIBI, he made clear at the outset that, in a judgment delivered on 29 May 2020 in Mongan v. Mongan & MIBI [2020] IEHC 262, McDonald J. determined that the MIBI Agreement 2009 can address negligence and malicious, or deliberately-caused, acts.
. The argument put forward by the Third Named Defendant in these proceedings is that the MIBI is a (or the) “fund of last resort”. It was submitted that the relevant Directives, which I will presently come to, require the putting in place by Member States of a body to process and deal with claims concerning uninsured and untraceable drivers and it is contended that, because the MIBI is a “fund of last resort”, it is incumbent on persons to first seek compensation from other sources, in this case, the source being a claim pursuant to the Garda Síochána ( Compensation) Act, 1941 (“the 1941 Act”).
. Reference was made during Mr. Downing's submissions to the so–called “1% Rule” (i.e. even if 1% of liability is found to attach to an uninsured driver, the MIBI does not escape liability) being a well-known, but non–statutory rule. It was contended that each incident in the present case was a deliberate and malicious act and that, as such, the plaintiff “had an option to bring a claim under the Garda Compensation legislation”. The word used in Mr. Downing's submission, was “option”, and this was very appropriate, because I have been unable to find any statutory provision or legal authority or principle which would require the bringing by a member of An Garda Síochána of their claim under the 1941 Act.
. Mr. Downing went on to acknowledge, again very appropriately, that time-limits for Garda Compensation scheme claims are limited under the 1941 Act. He also accepted, again very appropriately, that the Minister could have refused an application for compensation, had it been made under the Garda Síochána ( Compensation) Act, 1941. His submission was that this issue could and should have been addressed by, where necessary, the issuing of a “protective writ” or protective proceedings.
. Mr. Downing opened s. 2.1 (c) of the 1941 Act and it is appropriate to refer to that now. Under the heading of “Deaths and Injuries to which the Act applies”, s. 2.1 begins:-
“(1) This Act applies—
…
(c) to personal injuries (not causing death) maliciously inflicted after the date of the passing of this Act on a member of the Garda Síochána—
(i) in the performance of his duties as such member while actually on duty…”
. I pause to observe again that the Act does not go to say, for instance, that where any compensation is sought for such personal injuries (as defined) as were sustained by a member of An Garda Síochána, compensation shall be sought by way of an application under the 1941 Act. In other words, the legislation does not explicitly ‘rule out’ any other route.
. Reference was made also to other provisions within the 1941 Act, including s. 5 which, under the heading “Applications to the Minister for Compensation under this Act”, deals with mandatory provisions insofar as applications made. It begins by stating:-
“The following provisions shall apply and have effect in respect of applications to the Minister for compensation under this Act, that is to say …”
. I pause here to note that the mandatory term “shall” is used, not in the context of requiring an application to be made under the 1941 Act, but requiring that certain things be done in respect of applications which are made to the Minister. In other words, it does not mandate that someone in the plaintiff's position make an application.
. The section goes on at s. 5(a) to provide that:-
“(a) where the application is in respect of … injuries inflicted after the date of the passing of this Act, the application shall be made within three months after the day on which such death occurred or such injuries were inflicted …”
. That speaks to a much more restricted regime which is required for an application under the 1941 Act when compared to ‘Statute of Limitations’ times-limits.
. Under the heading “Powers of the Minister in relation to applications for compensation”, s. 6.1 of the 1941 Act begins:-
“Whenever an application is duly made to the Minister for compensation under this Act, the following provisions shall have effect …”
. Once again, that phrase plainly admits the possibility that an application is not made, even where the relevant incident might be said to qualify per s. 2.1(c) and that seems to me to be the factual situation in the present case.
. S. 7, under the heading of “Applications to the High Court for compensation under this Act”, begins:-
“(1) Any person who has applied to the Minister under this Act for compensation under this Act and has been authorised by the Minister to apply for such compensation to the High Court may apply to the High Court in accordance with such authorisation and this section”.
. Once more, the use of the phrase “any person who has applied” plainly admits the possibility...
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