Treacy v Minister for Finance
 IEHC 473
[2013 No. 368 SP)
IN THE MATTER OF AN GARDA SIOCHANA (COMPENSATION) ACTS 1941 TO 1945
Tort – Damages & Restitution – An Garda Siochana (Compensation) Acts 1941 to 1945 – Assault – Damages – Causation – Past medical history relevant
Facts: The applicant sought an order for damages against the respondent for three assaults suffered by the applicant. The applicant also sought an order for future loss of earnings due to the decision to take early voluntary retirement. The applicant contended that the physical and emotional harm suffered by him were the direct result of the injuries inflicted upon his person in those assaults.
Mr. Justice Bernard J. Barton awarded the general damages to the applicant to the extent the injuries sustained by him were caused by the said assaults. The Court, however, refused to grant an order to the applicant for future loss of earnings owing to the decision of the applicant to take voluntary retirement. The Court took into account the past medical history of the applicant, the degenerative changes that were ongoing in the pre assault period, surgeries and treatment that the applicant underwent with various medical practitioners. The Court found that the early retirement of the applicant was in the pipeline pursuant to pain and discomfort that the applicant was already feeling and the assaults though exacerbated the symptoms but could not be a cause for the same. The Court found that the applicant was aware at all times of the risk of getting a voluntary retirement and he made no serious attempts to seek early retirement in the light of his deteriorating condition.
The applicant was born on 29th day of November 1962, is a married man with two grown up sons aged 17 and 19, and resides at Camas, County Tipperary.
Having completed his schooling the applicant left Ireland and went to work in Canada. He spent a year there before returning home to join An Garda Siochana on the 24th of June 1983.
After passing out at Templemore, the applicant was stationed in Monaghan town for six months, followed by Emyvale for two years and finally Clones where he served for twelve years until 1997. At that time he was transferred to Cashel where he served until 2009 when he was transferred to Thurles serving there until his retirement in June 2013. Subsequently, he obtained qualification in the security industry and holds a licence to provide security services.
The applicant was authorised to bring these proceedings on the 5th of June 2013 in respectof three separate incidents each of which involved assaults, the first of which occurred on the 8th of October 2004: the second and third occurred on the 11th and 13th of November 2007 respectively.
The applicant has a distinguished sporting career, particularly in hurling. He was an under 18 all Ireland hurling medal winner and played for his local club. In his twenties he developed a passion for golf, a game which he played as often as he could, generally twice a week, ultimately progressing to the point where he held a handicap of ten.
During his career as a member of the force the applicant attended all training courses open to him including training for the road traffic corps, principally riding motor cycles, as well as courses in firearms and search and rescue.
The applicant has a relevant past medical history. In November 2002 he was seen by Mr. Kaar, consultant neurosurgeon, as part of an investigation into complaints of weakness, numbness, and paraesthesia in his left arm and leg. The symptoms had been intermittent for a period of two years at that time but had become more frequent in addition to which the applicant developed discomfort in his neck. In terms of his favourite sport, golf, his ability to drive a golf ball in terms of distance was affected and the grip in his left hand was weaker than it had been previously.
The clinical medical diagnosis made at that time was of mechanical neck pain as a result of degenerative changes in the applicant's neck, particularly at the level of C5-C6. The clinical diagnosis was confirmed by x-ray and MRI scans. The applicant was advised on exercising and maintenance of fitness levels; advice which he followed. He had been able for his full duties as a police officer and had continued to engage in his sporting and recreational hobbies albeit not completely free of symptoms when he was involved in the first of the three assaults the subject matter of these proceedings.
As to these, the first of the assaults was particularly violent as well as being prolonged. The assailant was over six feet tall, heavily built, strong and very aggressive. It took twenty minutes and two police officers, including the applicant, to subdue the assailant.
During the assault the applicant had been punched and kicked repeatedly. He sustained significant soft tissue injuries to his ribcage with a suspected rib fracture. Those injuries resulted in excruciating pain as well as contusions of the ribcage which took nearly three months to resolve.
In addition to his chest injuries, the applicant also sustained soft tissue injuries to his neck, his right shoulder and his back with radiation of symptoms into his left leg. The applicant was discharged from the emergency department of the hospital which he attended following the assault into the care of his GP, Dr. McCarthy, who subsequently referred him to Professor Molloy, consultant physician and rheumatologist. MRI scanning was arranged and this showed the presence of the pre-existing degenerative changes in the applicant's cervical spine. The MRI scan of the applicant's back was reported as normal.
The significance of the applicant's ongoing injuries is evidenced by his inability to return to full work duties until November 2005, having returned to light duties the previous July.
A further medical review was undertaken by Professor Molloy in September 2007, shortly before the second assault, and at that stage the applicant was described as being back on full duties with which he was coping. Clinical examination disclosed that neck movements were full but with some tenderness in the right supraspinatus muscle. Examination of the back showed the applicant to have a normal range of movement albeit that he was still experiencing intermittent pain and discomfort. Subsequent to the first assault the applicant underwent physiotherapy which had been prescribed and also took pain killing medication and analgesia.
Although he had complained about his neck and shoulder injuries as well as his back whenreported upon by his GP, Dr. McCarthy, in September 07 his complaints as recorded by Prof. Molloy were confined to stiffness and discomfort with some intermittent painful symptoms in the lower back; apart from some tenderness in the neck no specific complaints of neck or right shoulder pain are recorded by Prof. Molloy.
With regard to the pre assault medical history, the applicant's evidence was that some of the symptoms of paraesthesia which he had experienced in 2002 had returned after the assault but not to the same level as had been experienced when he had first attended Mr. Kaar in 2002.
The second assault, which occurred on the 11th of November 2007, was also violent. The assailant was known to be a drug addict and in the course of this assault the assailant started to bleed having head butted the applicant. After the assault the applicant was aware that his tunic and shirt were covered in the assailant's blood, moreover, the assailant had also spat on him. He was described by the applicant as being as high as a kite and definitely on drugs at the time when he and another officer were trying to subdue him. The applicant was aware that the assailant had a violent propensity which was exacerbated by drugs, that he knew his identity and where he lived. Accordingly the assailants treat to kill the applicant was taken seriously.
The applicant was also worried that he may have been infected with AIDS because he had been spat upon and had been sprayed with the assailant's blood as a result of a head butting by the assailant when the applicant was attempting to put him into a squad car. Fortunately a blood sample given subsequently by the assailant proved to be negative. Understandably he suffered some anxiety whilst waiting for the results of the test and in that regard had been advised to desist from unprotected sexual intercourse.
Despite what had happened to him the applicant continued to perform his duties and although worried about infection he performed those to the best of his ability until two days after the second assault, he was again involved in a harrowing incident which was the culmination of a high speed chase of a car which had been stolen in Cork and during which several other vehicles had been struck.
The applicant went to the aid of a colleague who was trying to arrest to driver of the stolen car. It transpired that he was also known to the applicant to have been addicted to heroin.
The applicant's evidence was that the driver had to be wrestled to the ground and during which he said he would kill the officers in question as well as their families. This was another threat which was taken seriously, the assailant having a well known record and propensity for violence which included a previous kidnap.
In the course of restraining the assailant the applicant and his colleague had had to drag him along the road for about 40 to 50 metres in order to get him into a squad car. When they got to the car the assailant kicked out and struck the applicant with great force in the groin which resulted in immediate and excruciating pain. In addition he had also suffered injuries to the ribs, neck, chest and back as well as to his left wrist.
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