1. In
the early hours of Wednesday the 21st of July 1999 the late Sergeant Andrew
Callanan met his death in horrific circumstances when he was engulfed in flames
while attempting to contain an arsonist at Tallaght Garda Station. He was
rushed to nearby Tallaght Hospital but was pronounced dead at 5.31 a.m. I am
told criminal proceedings are pending in connection with this event.
2. The
Applicant is Sergeant Callanan’s widow and she brings these proceedings
on the authorisation of the Minister for Justice Equality and Law Reform on her
own behalf and on behalf of her three children namely Stephen, who was 5 1/2 in
July 1999 and her twin daughters Jennifer and Sophie, who were then 2 1/2.
3. The
other dependants of the late Sergeant Callanan are his father Denis and his
sisters Helen, Rita, Siobhan, Kate and Mary. These have all executed waivers in
favour of the Applicant and her three children.
4. The
parties have reached agreement on the financial loss and special damage
elements of the claim and, having heard evidence from Brendan Lynch, actuary, I
have made an interim award in the sum of £644,900, apportioning
£527,900 to the Applicant, £36,000 to Stephen and £40,500 to
each of the twins Jennifer and Sophie.
5. This
Judgment deals, accordingly, with the sole head of damages identified at
Section 10 (1) (a) (iv) of the Garda Síochána (Compensation Act,
1941) (hereinafter the 1941 Act) as substituted by Section 2 (2) of the Garda
Síochána (Compensation) (Amendment) Act 1945 (hereinafter the
1945 Act). Section 10 (1) (a) (iv) of the 1941 Act as amended where relevant
provides
6. The
matters to which the Judge must have regard under Subsection (3) relate to the
entitlement of the Applicant to a state funded pension or similar in respect of
the death or injuries in the case and to costs and expenses incurred in an
application under the Grand Jury (Ireland) Act, 1836. Neither of these is
relevant in the present case.
7. Accordingly,
my task is to assess compensation in such a sum as I think reasonable having
regard to all the circumstances of the case and in fixing that amount I must
have regard to any loss (other than financial loss) sustained by the Applicant.
8. The
parties are represented by experienced Counsel who are in disagreement not only
as to any sum under this heading but also as to the basis upon which such sum
should be calculated. Accordingly a review of the law is necessary.
9. The
Act of 1941 required the Judge hearing an application for compensation to be
satisfied
inter
alia,
that
the Applicant had suffered loss by the death in question (see Section 8
(1)(d)). Compensation was to be awarded
“in
accordance with this Act”
and
Section 10 (1) set out general provisions which apply to fixing the amount of
compensation in respect of a death. These referred to funeral and surgical
expenses, the financial benefits which might reasonably be expected to have
been received in the future by the Applicant but for the death, and any award
made prior thereto.
10. There
was no reference to the compensation being “such sum as the Judge thinks
reasonable having regard to all the circumstances” as there was in the
1945 Act nor indeed to “any loss (other than financial loss) sustained by
the Applicant”.
11. Furthermore,
the compensation was limited to pecuniary loss suffered by the Applicants.
Sullivan C.J. (at page 403) said
12. The
1945 Act was enacted in response to this decision and explicitly reversed the
effect of the first of these findings with the result that the bequests and
such like under a will were to be disregarded and went on, as I have indicated,
to stipulate that Compensation should be “such sum as a Judge thinks
reasonable having regard to all the circumstances of the case..” and
require the Judge in fixing the amount thereof to have regard,
inter
alia,
to
“any loss (other than financial loss) sustained by the Applicant.”
13. The
1945 Act made these amendments retrospective and provided for supplemental
awards to correct the perceived shortcomings in the application of the earlier
act. Accordingly Mrs. O’Brien brought a second case and in
O’Brien
-v- the Minister for Finance (No. 2)
[1946]: IR 314 the then president Maguire P. applied the new Act and held,
inter
alia,
at
(p 318) that the subsection to which I have referred enabled him to award
compensation for the loss identified by the words quoted above from Sullivan C.
J. in
O’Brien
(No. 1)
but
without the limitation imposed by the words appearing in bold in the extract
therefrom which I have cited above.
14. Accordingly
the Court under the new Act is not confined to awarding compensation
“only insofar as the Court reasonably anticipates that pecuniary loss
would be likely to result”
from
the loss of a husband, father and homemaker. Maguire P. having reached his
conclusion went on to say that he found the task of measuring this loss in
terms of money extremely difficult. There were no standards to go on and there
was (then) no reported case. Since then there have been reported cases and
notably one unreported case namely
Reid
and Others -v- Minister for Finance
High Court (Budd J) 29th July, 1996, unreported, where the learned Judge
surveys many cases that assisted him in assessing the amount of compensation.
15. I
propose to adopt the same approach as my learned colleague in
Reid
but before attempting to summarise my approach to this case as a result, I must
deal first with one specific submission made by Ms. McDonagh B.L., on behalf of
the Defendant to the effect that compensation for the loss of her husband to
the Applicant, for the loss of their father to the children and for the loss to
all of them for the break-up of their home and the loss of parental guidance,
help and other advantages (to use of concepts set down by Maguire P. in
O’Brien
(No. 2)
)
should be in the amount that would be awarded for “mental distress”
under the Civil Liability Act.
17. Insofar
as consideration of cases generally were of assistance to Budd J. in
Reid
I
acknowledge that these may be of some relevance but I would, in this connection
note particularly and adopt the approach of Geoghegan J. in
Coppinger
v Waterford County Council
High Court (Geoghegan J) 22 March, 1996, unreported, in commenting on the
observations of O’Flaherty J. in
McKinley
-v- Minister for Defence
[1992]
2 IR 333.
18. In
light of the foregoing I approach the assessment of the remaining head of
compensation bearing in mind that the amount thereof is not limited to
pecuniary loss, that the amount must be reasonable in all the circumstances, it
must be somewhat less than
19. Compensation
under this remaining head of damages is not limited to the amounts which would
be available under the heading of mental distress in the Civil Liability code
and finally assistance may be derived from cases dealing with such concepts as
consortium (where relevant, which is not the case in the present instance) or
solatium as indicated by Budd J. in
Reid.
20. Chief
Superintendent Noel Smith gave evidence of the late Sergeant Callanan’s
death as already summarised in the introduction to this judgment. He said
Sergeant Callanan had taken the exam for inspector in May of 1993 and was on
the verge of being promoted. He had progressed fast and favourably through the
force, was an extremely fine man, had been selected to train for the Pulse
Computer Programme and was the kind of man who would take on responsibility and
see the job through. In Tallaght he had between 16 - 20 people under him for
six years and he was held in the highest esteem, both for his leadership
qualities and for his humane dealings with everybody. The public had come to
the station in droves after his death to offer condolences.
21. The
Applicant said that she had first learned of her husband’s death in the
early morning of the 21st of July 1999 when she was woken and told what
happened: she
22. Since
her husband’s death she has not had any social life and does not want to
have one. While she has good relations with her in-laws and his colleagues she
has become somewhat isolated in the past 14 or 15 months. She visits her doctor
every month on her own account as well as for her children. She has to have
tablets to cope and has had to learn cooking since her husband’s death
because he did most of the cooking when he was alive.
23. Her
son Stephen has some good weeks and other weeks when he is in bad form. He had
a very good relationship with his father: the twins too were very close to him
and he gave a lot of time to them. They were very demanding and required full
time attention. She finds it difficult at times with the children: sometimes in
games they asked her to play “daddy”. She said she sometimes is
cross with the children and has to take on the role of both parents as best she
can. She tried counselling but did not find it helpful, but has just started a
new counsellor and proposes to continue with him.
24. My
impression of the applicant when giving her evidence is that she is a young
woman (still in her thirties) who is still deeply traumatised and debilitated
by the death of her husband. She found projecting her voice burdensome, I
thought to the point of being almost distasteful, (something which on its own
would not necessarily distinguish her
25. Dr.
Maureen Gaffney, Consulting Psychologist, gave evidence of the general
psychological consequences of a traumatic death of a husband and father. Where
the loss of a primary attachment figure is unexpected, sudden, traumatic and
frightening the risk of ongoing psychological distress and in the case of
children, development problems is greater than the simple loss of a primary
attachment bond. The fact that the surviving parent is herself distressed,
depressed, overwhelmed and psychologically preoccupied exposes the children to
increased risk of developmental harm. The fact that one child was 5 and the
twins were 2 meant that as young children they were even more vulnerable to the
loss of a parent and at risk of temper tantrums (as the evidence shows in the
case of Stephen) and of aggressive and attention seeking behaviours. The fact
that the Applicant is herself a young woman means that she had no opportunity
to prepare herself mentally for the loss of her spouse. Moreover, the fact that
there are infant twins puts extra strain on all relationships as twins require
two parents.
26. Psychological
research has shown that having a primary attachment bond provides us with a
“safe haven” and a “secure base” to whom the family
members can turn when distressed, frightened, insecure or in trouble thereby
providing a defence to physical or psychological disorder. Studies have shown
that widows and widowers are more likely to suffer a range of psychological and
physical ill health than their married counterparts. Equally the loss of a
parent before the age of 12 puts children at more risk of psychological
disorders, particularly depression in adult life. Having a secure primary
attachment figure frees up mental energy from a preoccupation with seeking
security and enables it instead to go out into the world to face and cope with
developmental challenges. This is particularly so in the case of children. The
death of a parent has been found to be associated with regressive
27. After
an initial period of debilitating anxiety and disbelief with enduring
psychological preoccupation and intense yearning for the missing person, there
is a period of despair, psychological disorganisation accompanied by sleeping
and eating disorders, social withdrawal and profound loneliness and sorrow.
This period of despair and disorganisation lasts for many months. In the first
few months approximately 30% - 40% of adults can be classified as clinically
depressed. After 12 months 18% to 30% of adults continue to exhibit symptoms of
depression. After 24 to 30 months 18% are still showing signs of depression
i.e., about twice the base rate in the non-bereaved population. Even healthy
individuals continue to dream, cry over and yearn for a deceased partner many
years after a bereavement.
28. The
final phase of mourning leads to a psychological reorganisation that enables
the bereaved person to return to normal activities. Unless the attachment
figure is replaced, however, the emotional gap remains. In the case of a
bereaved spouse and children such a replacement is frequently neither possible
nor desired. Studies have shown that grief can be further complicated if the
loss was so sudden and traumatic that the bereaved person cannot
psychologically register the loss. This “numbing” can prevent the
normal course of mourning taking place and can lead to unresolved grief. This
can be evidenced by delayed mourning, where the bereaved exhibits a relative
absence of grief, which can, in the long term lead to psychological
difficulties or chronic mourning, characterised by protracted grief and
difficulty in normal functioning resulting in clinical depression and anxiety.
New scientific
29. In
children disorganised attachment can lead to significant emotional and
behavioural problems and leave them more vulnerable to a range of psychological
disorders and in the case of adults it can significantly impair their parenting
ability, particularly their ability to impart basic security to the child. This
condition can cross generations so that the parent with unresolved attachment
is significantly more likely to have a child diagnosed with disorganised
attachment who in turn, when he or she becomes a parent, is more likely to have
a child diagnosed with the same condition.
30. In
the case of parents who have unresolved grief they have a 75% chance that their
children will have disorganised attachment which compares with a 20% chance in
the normal population. For a widow to have to take on a range of activities
which had been done by her deceased husband is a constant stress and reminder
of his loss provoking feelings of sadness, helplessness, irritability and anger
at the deceased for having “put”
her
in this position. These feelings of anger can in turn provoke feelings of guilt
and further sadness. In the case of Sergeant Callanan who took a highly active
role in the traditional male activities of house maintenance as well as
cooking, this means that Mrs. Callanan is daily faced with the task of
performing all of these activities when she is least psychologically equipped
to learn new skills. Widows find it difficult to integrate into social life
which is normally couple based.
31. In
regard to the loss of a father there is the loss of his role which facilitates
development of gender identity for both girls and boys. Consequences include
shyness and withdrawn behaviour on the part of daughters when they reach
adolescence and