High Court of Ireland Decisions

1. This is an application brought pursuant to leave granted by Mr. Justice Barron on the 9th December, 1996 for Judicial Review in respect of the refusal of the Respondent to authorise the Applicant to apply to the High Court for compensation pursuant to the Garda Siochana (Compensation) Act, 1941. Specifically what is sought is an Order of Certiorari quashing the refusal decision, a declaration that the Applicant is entitled to make an application to the High Court for compensation or alternatively an Order of Mandamus compelling the Respondent to authorise the Applicant to apply to the High Court for compensation pursuant to the Garda Siochana (Compensation) Acts, 1941 and 1945 and for a declaration that it is ultra vires the powers of the Respondent to refuse to authorise the Applicant to apply for compensation and alternatively for an injunction compelling the Respondent to authorise such application.

2. The Applicant in this case was a member of the Garda Siochana and he applied to the Minister for Justice under Section 6 of the Garda Siochana (Compensation) Act, 1941 for compensation under the Act in respect of an injury maliciously inflicted upon him in the course of his duty. To understand the nature of the dispute with the Minister it is important that I should cite in full paragraph (b) of subsection (1) of Section 6 of the 1941 Act. The paragraph reads as follows:-

3. In this case five years after the application was made the Minister finally ruled that the injuries were of a minor character and that they were not sustained in the course of the performance of a duty involving special risk and accordingly refused the application.

4. The relevant correspondence commenced with a letter from the Solicitors for the Applicant to the Secretary of the Department of Justice dated the 16th October, 1991. That letter enclosed the application form for compensation and gave personal particulars regarding the Applicant's identity. In response to that letter, the Department wrote a letter of the 18th November, 1991 and signed by "A. O'Shea" acknowledging receipt of the application but going on to make what, in my view, was a very appropriate request. The relevant paragraph read as follows:-

5. By a letter of the 8th December, 1992 the Solicitors for the Applicant sent forward to the Garda Surgeon a medical report from Dr. Aidan Ward dated 5th November, 1992. There was then a long delay in arranging any examination by the Garda Surgeon and a reminder letter was written on the 18th May, 1994. As that did not elicit a reply, a letter of the 9th December, 1994 was written to the Secretary of the Department of Justice requesting that the issue of the authorisation be expedited. What might be described as a holding letter was written by the Department on the 12th January, 1995 and when nothing happened, a further reminder was sent to the Department by letter of the 8th March, 1995. That did elicit a reply of the 22nd March, 1995 but again only of a holding nature. A further strong request was made to have the matter expedited in a letter to the Secretary of the Department dated the 19th October, 1995. There followed a letter of reply from the Department on the 25th October, 1995 which was somewhat more detailed than earlier letters but which again could only be described as a holding letter. Finally, a letter of the 12th November, 1996 was written by Hughes Murphy & Co., Solicitors for the Applicant to the Secretary of the Department of Justice in the following terms:-

6. We refer to the application of Garda Peter Mulryan (sic.) for compensation under the above mentioned Acts of the Oireachtas in respect of injuries sustained by him while in the course of duty on the 29th September, 1991. It is now well in excess of five years since the date of Garda Merrigan's application for compensation was submitted to the Department of Justice.

7. Garda Merrigan sustained severe personal injuries causing him great discomfort. Furthermore, he has endured considerable financial loss due to resulting periods of absence from work. The injuries to our client have caused great stress to himself, his wife and his family. Our client has complied fully with all procedural matters pertaining to this application. This application was made well within the three month period allowed from the date of the incident. He has presented himself for all medical examinations, when requested, including an examination before the Garda Surgeon.

8. This firm of Solicitors have written to the Department of Justice seeking the issuing of Authorisation on the 9th December, 1994. No firm indication was given in any replying letter as to when an Authorisation might issue.

9. In view of the fact that the incident occurred over five years ago and that the procedure under the above mentioned Acts of the Oireachtas is the only one by which Garda Merrigan may be compensated for the injuries sustained, the delay by the Minister in issuing the Authorisation to proceed is extraordinary and must be seen as a grave injustice to our client.

10. Our client instructs us that he is no longer prepared to countenance further delay. We are further instructed that unless an Authorisation to proceed is issued prior to the afternoon of Friday the 15th November, 1996, we are to immediately seek a Court Order from (sic.) Mandamus compelling the Minister to do so.

11. We await hearing from you by return.

12. Yours faithfully,

13. Hughes Murphy & Co.,

14. Following on this letter a final determination was made by the Minister in a letter from the Department dated 29th November, 1996. That letter read as follows:-

15. The Applicant, in his grounding affidavit, makes it clear that medical reports from Dr. Aidan Ward dated the 2nd December, 1991, the 5th November, 1992 and the 14th June, 1993 together with medical reports from Dr. Brian O'Moore dated 19th September, 1993, 7th March, 1994 and 20th August, 1994 were furnished to the Department as was also an EMG examination report of the 22nd January, 1992. It is alleged in paragraph 6 of the statement grounding the application that the Respondent had failed to consider all of the material which was before her and in particular failed to consider medical reports sent to the Department on behalf of the Applicant but on the contrary considered only reports and documents which had been furnished to her by the Commissioner of An Garda Siochana and the Garda Surgeon. This allegation has not been disputed in the Statement of Opposition or in any replying affidavit. Indeed, in his affidavit sworn on the 6th June, 1997, Mr. Shelly, Assistant Principal Officer of the Department of Justice says that for the purpose of her reaching her decision, the Minister was provided with the following documentation:-

16. It is not in dispute that the injuries were not sustained in the course of the performance of a duty involving special risk and therefore the Commissioner's report is not of importance. But what is of importance is that the Minister, in making her decision, that the injuries were of a minor character relied only on the report of the Garda Surgeon. The Garda Surgeon, in his report, admits that he has seen the medical reports furnished on behalf of the Applicant but he does not disclose any of their contents. He expresses the following opinion:-

17. The view of the Applicant's injuries taken by the Garda Surgeon does not correspond with the view taken in the medical reports submitted on behalf of the Applicant, all of which indicate a much more serious injury than is suggested by the Garda Surgeon, Dr. McCarthy. But even on the basis of Dr. McCarthy's own report, I find it difficult to see how the Minister could have formed the opinion that the injuries were of a minor character within the meaning of the Act given that there were undisputed continuing adverse sequelae four and a half years after the incident. In particular, I find it difficult to understand how the Minister could place any reliance on McGee -v- the Minister for Finance , 1996 3 I.R. 234 in support of her decision. In that case Carney J. held that the minimum level of injury required to attract the benefit of the Garda Siochana Compensation Code was considerably above that of a nose bleed and some associated bruising and discomfort and that when the injuries were of such a trivial nature, the Minister should not authorise the proceedings. I totally accept the general principle emphasised by Carney J. that the Minister has a role under the Act in refusing to authorise proceedings where the injuries are of a minor character (subject to the statutory exception) and that here she should exercise that function. But even on the report of the Garda Surgeon the injuries would not appear to be of a minor character within any normal meaning of that expression and accordingly the Minister's decision was irrational.

18. I think it would be helpful at this stage to consider what the expression "injuries of a minor character" does in fact mean. I can see real problems for the Minister arising out of the wording of Section 6(1)(b)(i) of the 1941 Act in that if there is a refusal there is always the potential risk of a Judicial Review proceeding being brought. Nevertheless, like Carney J., I would not attempt to give an absolute definition of what are injuries of a minor character. Carney J. considered that in this connection the constant use in the Act of the expression "injuries not causing death" might be of some significance. On this particular point, I would respectfully take a different view. I do not think that there is any special significance in that expression as I believe it means simply literally what it says or in other words non fatal injures of any kind. It is clear for instance that in Section 6(1)(b) the expression "injuries not causing death" is used in a context which would include injuries of a minor character in respect of which the Minister would be obliged to refuse to authorise proceedings under subparagraph (i).

19. Nor do I agree with the submission made on behalf of the Applicant that the reference to one hundred pounds in subparagraph (ii) implies that the Oireachtas was effectively defining an injury of a minor character as an injury in respect of which the compensation could not reasonably exceed one hundred pounds. I do not think that there is anything in the wording of the Section to justify that interpretation. It would seem to me to be illogical because the Garda Siochana (Compensation) Acts permit of compensation which includes effectively both general damages and special damages such as out of pocket expenses. For an identical injury one Guard in 1941 might have incurred no out of pocket expenses and been awarded one hundred pounds for pain and suffering while a colleague who did incur out of pocket expenses of say twenty pounds would be awarded one hundred and twenty pounds. If the submissions on behalf of the Applicant were correct, the Minister would have had to refuse to authorise proceedings in the first case and would have had to authorise them in the second. I doubt at any rate that an assumption can be attributed to the Oireachtas that money values would remain static into the future.

20. I think that the expression "of a minor character" implies a consideration of the nature of the injury rather than the amount of the compensation which would be paid for it. What the legislature intended, in my view, was that if, for example, a member of the force sustained an injury of a kind which would otherwise be compensatable but which cleared up after say two months with no ill effects such an injury would be considered to be of a minor character. I give that as an example of such an injury rather than a definition which would be quite impossible. It is my view, therefore, that the Minister ought to refuse to authorise proceedings in a case where there has been a complete recovery within a matter of weeks with no medically explicable adverse sequelae. But this case is very different and the injury on any fair appraisal, in my view, could not be regarded as being of a minor character. For that reason I am prepared to grant the Order of Certiorari.

21. But even if I were wrong in the view which I have taken I would still have to grant the Order of Certiorari because the Minister, in making an important decision affecting the Applicant, had to act in a quasi judicial manner and clearly, in my view, breached the rules of natural justice by relying only on the Garda Surgeon's Report and not examining the medical evidence submitted on behalf of the Applicant. I would go further and say that if, as in this case, there was respectable medical opinion coming forward from the Applicant that indicated that the injuries were not of a minor character while at the same time if there had been a report from the Garda Surgeon which clearly indicated the opposite, the Minister would not normally be entitled in that situation to form an opinion that the injuries were of a minor character at least without further investigation. The Minister would have to have an open mind and not form any such opinion. In that situation, in my view, authorisation would have to be granted. There may be cases where, as suggested by the Applicant, the Applicant should be given sight of the Garda Surgeon's medical report before the decision is made but I do not think that that necessarily has to be done in every case. What the Minister does have to do is to consider the medical reports from both sides and is not entitled to form an opinion that the injuries were of a minor character if the opposite view would be reasonably open on the medical evidence furnished by the Applicant.

22. On this ground also, therefore, I am prepared to make the Order of Certiorari.

23. Subject to final discussion with Counsel, I am disposed to making an Order of Certiorari quashing the refusal decision of the Minister and referring the matter back to the Minister for a new decision to be made.