Mullen v Minister for Expenditure and Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 05 May 2016
• Neutral Citation: [2016] IEHC 295
• Docket Number: 2015 1722 SP
• Court: High Court
• Date: 05 May 2016

[2016] IEHC 295

THE HIGH COURT

Barton J.

2015 1722 SP

IN THE MATTER OF AN GARDA SIOCHANA (COMPENSATION) ACTS, 1941 AND 1945 AND

BETWEEN

DARYL MULLEN

APPLICANT

AND

THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM

RESPONDENT

Compensation – An Garda Siocha (Compensation) Acts, 1941 and 1945 – Injury while on duty – Assessment for compensation – Nature and gravity of injuries – Catastrophic injuries

Facts: Following the assault of the applicant while on duty as a police officer by an assailant, the applicant brought the present application for compensation for receiving grave physical injuries in that assault. The applicant claimed that he should be awarded the highest level of general compensation as he had suffered catastrophic injuries to the extent that his ability to work had been limited to clerical jobs only and he continued to suffer psychological impact.

Mr. Justice Bernard J. Barton awarded general compensation to the applicant along with an award for special pecuniary losses and loss of future earning subject to a deduction of 20%. The Court held that the highest level of general compensation was made in cases where there was no claim for future loss of earnings and other pecuniary losses. The Court found that since the applicant had claimed for a loss of future earnings, a cap would be applicable on the assessment of general compensation. While making an assessment of compensation, the Court took into account the permanent nature of the injuries, inability to find secured employment, need for medical aid and loss of income.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 5th day of May, 2016

1 The Applicant was born on the 28th of May 1978. He is married and resides at Slieve Bracken, Gortlee, Letterkenny, Co. Donegal. On the 9th August, 2009 at or near James Street car park, Westport, Co. Mayo, the Applicant was the victim of a vicious assault and battery. That the resulting injuries and loss were inflicted maliciously is not in question and on the 17th June 2015, the Respondent authorised the bringing of these proceedings.

Background

2 The Applicant comes from Tuam, Co. Galway. He realised his ambition of becoming a police officer when he passed out of Templemore in 2002. He was a very physically fit young man; being a regular attendee at his local gym and a committed participant in Gaelic football and soccer. A marriage in 2004 did not last and was subsequently annulled. He met his present wife, also a member of the force, in 2008. They married in 2013 and have started a family.

3 On the date of the assault the Applicant was on plain-clothes duty with a unit of the drugs squad in Westport where a street festival was taking place. There were a large number of people in the town. He and his colleagues were involved in carrying out searches for illicit drugs. The Applicant saw a group of young men behaving suspiciously. He identified himself as a police officer; the group scattered and, as it did so, he ran after one individual who appeared to be holding a suspicious implement under his arm. Just as the Applicant caught up with the assailant and was attempting to grab hold of his arm, the assailant produced a knife which he drove into the left hand side of the Applicant's abdomen; repeating that action several times causing horrific internal injuries in the process.

4 The Applicant began to bleed profusely and developed hypovolemic shock. He was rushed to the operating theatre of Mayo General Hospital where he underwent an emergency laparotomy. This disclosed massive inter-peritoneal bleeding together with a laceration to the splenic pedicle and spleen, a large laceration to the splenic flexure of the colon, two lacerations in the distal part of the jejunum, a laceration of the mesentery of the colon and a retro-peritoneal haemorrhage. An emergency splenectomy, a repair of the colonic laceration and a small bowel resection with anastomosis, which was covered with a proximal loop ileostomy, was carried out.

5 Following surgery the Applicant was transferred to the intensive care unit where he remained for a week before being transferred to the surgical ward. A CT scan of the 11th August, 2009 showed a collapsed consolidation of the basal aspects of both lower lobes of his left lung with prominent pleural effusion. The knife entry wound, measured at 7cm, became infected and although he was discharged home from hospital on the 26th August, 2009, the Applicant had to be readmitted 3 days later. A further CT scan taken on the 1st of September showed an increase in the size of the splenic bed haematoma together with an interior abdominal wall sepsis secondary to the infection. This was treated with IV antibiotics. A pig-tail drain was inserted in the left upper quadrant in the bed abscesses. Chest physiotherapy was also commenced. A further pig-tail drain was inserted in the left pleural effusion on the 4th September, 2009.

6 At medical review on the 22nd September, 2009, the pig-tail drains were still discharging significant quantities of pus notwithstanding ongoing chest physiotherapy and IV antibiotics and as a result of which the Applicant was transferred to University College Hospital, Galway. On the 6th of October 2009 a left pleural decortication was performed. In evidence the Applicant described this procedure as being particularly painful. It transpired that he had developed MRSA in the operative wound whilst in hospital; one of the consequences was a loss of approximately three stone in weight.

7 The Applicant underwent an elective closure of his loop ileostomy on the 20th March, 2010. Initially the restoration of his intestinal continuity produced a positive response in bowel function. Unfortunately that was not maintained, became problematic, and requires ongoing treatment with medication. He regained weight but continued to suffer from epigastric discomfort as well as pain in his right shoulder, right hip and lower back. He also developed a lump in the upper left flank which was described as being roughly the size of a golf ball and which would protrude intermittently on certain movements. When provoked, this protruding lump would appear suddenly but just as suddenly would disappear. Difficulty was experienced in finding a comfortable position especially when sitting or sleeping. As a consequence of the splenectomy the Applicant required and was commenced on life long vaccination against infection.

8 As he mobilised and gradually recovered from the serious infection at the site of the main operation wound, the Applicant became more conscious of the pain which he was experiencing in his back, right hip and right shoulder in addition to his abdomen and chest symptoms. These problems were treated with intensive physiotherapy and physical exercises, including cycling; all as part of a rehabilitation program. However, he was unable to return to his hobby of swimming because he found that swimming strokes aggravated his right shoulder pain.

9 There is no issue between the parties as to the seriousness of the physical injuries. In that regard the Court has had the benefit of a number of medical reports which were admitted into evidence. Those for the Applicant were prepared by Mr. Khalid Asgar, Consultant Locum Surgeon, Mr. Mark Regan, Consultant General and Gastrointestinal Surgeon, Mr. Mark da Costa, Consultant Cardio-Thoracic surgeon, Mr. David O'Gorman, Pain Management Consultant, Dr. John F. Connolly, Consultant Psychiatrist, Mr. Peter Murphy, Consultant Psychologist, Mr. Eamon Rogers, Consultant Urologist, Dr. Enda Harhan, GP, and Dara Dunne, Chartered Physiotherapist. The reports for the Respondent were prepared by the Chief Medical Officer and Dr Patrick Devitt, Consultant Psychiatrist.

10 Towards the end of 2010 and early 2011 the Applicant had recovered to a point were he was anxious to return to work. He was still suffering from painful symptomology, including involuntary spasms in the area of his left abdomen and chest which could occur on a varying number of occasions during the day. In addition to his physical symptomology, he had also developed significant physiological problems for which he was referred to Dr. John Connolly. When first reviewed by him in February 2010 it was noted that the Applicant complained of irritability, a lack of energy and motivation, disturbed sleep, feelings of being depressed, intrusive thoughts about the assault as well as anxiety and fears for the future. These problems were treated with a combination of medications to which there was an initially positive response. Unfortunately for him the Applicant also experienced certain well-known medical side effects from the medication including erectile dysfunction, which in itself was the cause of distress especially as the Applicant and his wife were anxious to start a family.

11 In February, 2011 the Applicant was certified fit to return to light duties. He applied for and was successful in being assigned to the position of Detective Garda. He was hopeful that his symptoms would gradually improve, especially once he had returned to work. However, his hopes were not to be realised. He continued to suffer from muscle spasms and had developed problems with his gall bladder as well as a left sided hernia. Mr. Regan was hopeful that further surgery, carried out in October 2011, to deal with these difficulties, would prove beneficial. The hernia was repaired and the gall bladder removed. Once again there was an initially positive response to these procedures until the Applicant began to mobilise post-operatively, the muscle spasms returned in a way which he described as being ‘worse than ever’.

12 In early 2012 he re-attended Mr Regan with a view to ascertaining whether there were other surgical options to deal with the ongoing problems. He was...