High Court of Ireland Decisions

[2004] IEHC 365

THE HIGH COURT IN THE MATTER OF THE GARDA (COMPENSATION) ACTS, 1941 AND 1945

[2004 No. 169 SP]

BETWEEN

MICHELLE O'SULLIVAN

PLAINTIFF

AND THE MINISTER FOR FINANCE

DEFENDANT

JUDGMENT of Mr. Justice MacMenamin delivered the 29^th day of November 2004.

The applicant in these proceedings was born on 27^th June, 1971. She is a former member of An Garda Síochána and lives in Ballincurrig, Leamlara, County Cork with her partner, Stephen Roe. Mr. Roe is still a member of the force. Ms. O'Sullivan and Mr. Roe together have two children, aged three years and five months respectively. Mr. Roe has two children born prior to the commencement of his relationship with Ms. O'Sullivan. These children are aged sixteen and twelve years respectively.

This application arises from an incident which occurred on 27^th February, 1999. The applicant was called with a number of her colleagues to a fracas which occurred in a house in Ballincollig in Cork. The gardaí were requested to arrest a drug addict residing there. In the course of effecting this arrest, the suspect, namely Jerry Buckley, became violent. The upstairs room occupied by him was set on fire. Electricity in the house was cut off. The bedroom was full of flames. Jerry Buckley was on the floor kicking and biting anybody who came close to him. Members of Mr. Buckley's family also became involved in what evolved into a very violent incident. In the course of this, the applicant was thrown or pushed down the stairs of the house while in darkness. The applicant and her colleagues then came under attack from a number of Mr. Buckley's family and neighbours.

Ultimately, with the assistance of other members of the gardaí and a number of firemen who were called to the scene, the applicant was able to escape. She thereafter attended at Cork University Hospital Accident and Emergency Department.

I am satisfied that in the course of this traumatic incident the plaintiff sustained injuries to her left shoulder, left leg, right ankle and a fracture of the fifth rib. She also suffered pain in her neck, chest and low back. She suffered significant post-traumatic stress including anxiety as to whether or not she had contracted Hepatitis C or HIV.

The applicant also suffered continuing neck and back pain, paraesthesia in both hands and pain on engaging in physical work or exercise. Spinal injuries were described in reports of MRI scans. The first such scan was taken on 12^th May, 2000 at the request of Dr. Michael Molloy, Consultant Physician in Cork University Hospital. This scan showed central bulging in the thoracic area at T5-7. The indication was that the finding in the T5-6 area was a small lesion with the T7 lesion being more pronounced.

Despite the fact that the spinal cord was not compromised, the plaintiff still to this day continues to suffer pain in the dorsal spine, neck and shoulder. While it might have been hoped that she should have made a full recovery, such hopes have not been borne out. As of August 2000 Mr. O'Sullivan found that the applicant's back and neck symptoms were deteriorating. When seen by him on 3^rd April, 2002 Ms. O'Sullivan's symptoms were again worsening although they waxed and waned in intensity. Ms. O'Sullivan was suffering from difficulty in sleeping and inability to work owing to back pain.

Mr. O'Sullivan's view as of 2002, was that the applicant was unlikely to improve, a view borne out by a more recent report dated 20^th May, 2004.

Essentially, on the applicant's evidence, she continues to suffer from inter-scapular and low back pain, worsening with time. During her second pregnancy she suffered constant tiredness, difficulty in sleeping and "deadness" in the lower half of her body.

The applicant was also seen by Mr. Sean Ó Laoire, Consultant Neurosurgeon in the Mater Hospital, Dublin, on behalf of the respondent. These examinations took place in the year 2000 and 2002. At the earlier examination Mr. Ó Laoire identified two disc ruptures but recommended against any form of surgery in view of the fact that the spinal cord was not compromised.

Mr. Ó Laoire again examined the respondent on 20^th September, 2002 again expressing somewhat hopeful views. However no subsequent medical evidence to that date has been adduced on behalf of the defendant.

In the view of Dr. Michael Molloy and Mr. Michael O'Sullivan, Ms. O'Sullivan was unfit for further service in An Garda Siochána. With the consent of the Chief Medical Officer of An Garda Síochána (who also held that she was suffering from significant incapacity) she ultimately retired on medical grounds on 20^th March, 2003.

On a daily basis the plaintiff has to undertake the care of her two young children. Periodically, perhaps once or twice a week during his off duty time, Garda Roe, the applicants partner, must also take care of his two older children, the elder of whom suffers from down's syndrome.

Ms. O'Sullivan stated in evidence that she is still significantly restricted in back movement, affecting her ability to care for her children. Her partner has to carry out a great deal of work around the house. She has to go to bed as early as 9.00 pm owing to fatigue. She finds it difficult to carry out weekly shopping, or much of the normal work which takes place around the house.

I am satisfied on the evidence that Ms. O'Sullivan has suffered significant diminution in her quality of life.

A former lifeguard, she is now restricted in her ability to swim. She had commenced to play golf and now can no longer do so. She and her partner used to go on motorcycling holidays. Now they can no longer engage in this pastime.

I am satisfied that as a result of the foregoing the applicant has suffered substantial pain and suffering, that this back pain has caused her retirement, and that she will continue to suffer significant symptoms into the future.

General damages

In my view the applicant is entitled to compensation as general damages for pain and suffering of €40,000 to date and €45,000 into the future. This makes in total damages for pain and suffering of €85,000.

Agreed special damages

The special damages to date are agreed in the sum of €31,790.18.

Also agreed are the sums of €34,050 for future loss of pension, and a further sum of €29,500 for loss of lump sum on retirement.

Future loss

A number of issues arise regarding the applicant's claim for future loss of earnings up to the age of 57, that is normal retirement age for members of An Garda Síochána; and her entitlement (if any) to additional compensation for loss of earnings between the age of 57 and the age of 65.

The issue of loss of earnings has a number of slightly unusual aspects. Prior to induction into An Garda Síochána the applicant obtained a pass degree in University College Cork in French and Economics. She also obtained a post-graduate diploma in computer science, upper second-class honours grade 1. It is noteworthy that Ms. O'Sullivan's ability with the French language is such that she was asked to teach basic French to Garda recruits in Templemore after her induction. Indeed, part of her primary degree qualification was in technical French, although her last academic qualification was obtained 11 years ago.

Ms. O'Sullivan also testified that she would be significantly restricted in her back movements such as to prevent her from carrying out normal day to day work. She stated that she had attempted to mimic work activities such as sitting at a desk and found it difficult to do so. She found it difficult to envisage a form of employment in which she might now fruitfully engage. She accepted in the course of cross-examination that up to the date of hearing she had not yet actively explored any alternative form of employment.

I am satisfied that on the evidence Ms. O'Sullivan has significant diminution in her work capacity and this is ongoing. I am also satisfied however that she is an intelligent and highly motivated woman, who would if possible have returned to work as a member of An Garda Síochána.

No evidence was adduced nor was Ms. Sullivan asked to testify that she would not have remained a member of the police force until the age of 57. Ms. O'Sullivan and Mr. Roe both testified that such was her intention.

In the absence of any countervailing evidence therefore, I must find that Ms. O'Sullivan would, as a matter or probability, have remained a garda until the age of 57 years, despite the fact that the care of two children and the occasional care of all four might have presented some significant difficulties to her and to Mr. Roe from the point of view of their rostering schedule as members of An Garda Síochána.

It is to be noted that Ms. O'Sullivan did not make any claim that during the course of her Garda employment she would have probably been promoted in rank. Nor has any claim been mounted for ongoing childcare from family members of Ms. O'Sullivan and Mr. Roe, although they regularly assist in this way.

While in the course of cross-examination Ms. O'Sullivan did accept that from time to time it may be necessary in the future for her to employ a child minder, I do not believe that the evidence is sufficiently specific to make any deduction under this heading.

Agreed capital value: future loss to age 57

The agreed capital value for future loss of earnings to age 57 amounts to a figure of €300,000, assuming that the applicant has a nil future earning capacity.

I have had the opportunity of assessing the plaintiff in the witness box. She was fluent, articulate and able to present her evidence in a highly competent manner. I do not believe that a person as well motivated and intelligent as Ms. O'Sullivan would have a nil earning capacity.

During her own evidence she was cross-examined at some length on this issue. So too was Ms. Mary J. Feely, Vocational Rehabilitation Consultant. In my view as a matter of probability, Ms. O'Sullivan will be able to obtain work in either languages, technical translation, desk work or teaching, although I accept that it would be necessary for her to obtain additional diplomas or qualifications for this purpose.

However, I believe that within a relatively short period of time she will be able to engage in such work on a contractual or part-time basis.

In the circumstances therefore, I am prepared to allow a figure of €150,000 under this heading – that is one half of the claimed figure of €300,000 for future loss of earnings up to the age of 57 years.

Future loss: Age 57 to 65

There remains the issue as to whether or not the applicant is entitled to claim a capital sum for loss of earnings between the age of 57 and 65 years.

In the course of her testimony the applicant suggested that she might have taken up security work or hackney driving at age 57. I do not believe that the evidence on this point is in any way sufficiently persuasive, clear or conclusive in order to base an actuarial claim for loss of earnings into the future. In my view the evidence is sufficient only to justify an award of €15,000 for a loss of potential future employment opportunity.

On behalf of the defendant Mr. Connor Maguire S.C. urged that deductions should be made from the figures of compensation for future loss of earnings in the following circumstances.

At present, and for the foreseeable future Ms. O'Sullivan receives an ongoing sum of €168.00 per week. This sum is composed both of disablement benefit and social welfare allowance.

Mr. Maguire S.C. urged that such a deduction should be made relying in part, and by implication, on s. 2 of the Civil Liability (Amendment) Act 1964. This provides:

"In assessing damages in an action to recover damages in respect of a wrongful act (including a crime) resulting in personal injury not causing death, account shall not be taken of

(a) any sum payable in respect of the injury under any contract of insurance, or

(b) any personal gratuity or other like benefit payable under statute or otherwise in consequence of the injury."

As a logical corollary or consequence of this he contends that in the circumstances of this case Garda Síochána Compensation application account should be taken of such payments either under common law or pursuant to s. 75 (1) and (4) of the Social Welfare (Consolidation) Act 1993. .

Section 75 (1) of that Act provides:

"(1) Notwithstanding section 2 of the Civil Liability (Amendment) Act, 1964 and section 236 of this Act, in an action for damages for personal injuries (including any such action arising out of a contract) there shall in assessing those damages be taken into account, against any loss of earnings or profits which has accrued or probably will accrue to the injured person from the injuries, the value of any rights which have accrued or will probably accrue to him therefrom in respect of disability benefit payable by virtue of section 53 (disregarding any right in respect of the said disability benefit payable by virtue of section 210 after the death of the injured person) or disablement benefit (disregarding any increase thereof under section 57 in respect of constant attendance) for the five years beginning with the time when the cause of action accrued."

Subsection (4) of the same Act provides:

"Notwithstanding the Garda Síochána (Compensation) Acts, 1941 and 1945 there shall in assessing compensation be taken into account against:

(a) any loss of earnings or profits which has accrued or probably will accrue to the injured person from the injuries,

(b) the detrimental effect which the injuries might reasonably be expected to have on the future earning power generally of the injured person and in particular (if the injuries do not preclude the injured person from continuing to be a member of An Garda Síochána) on his future career in that force, and

(c) the pain and suffering occasioned by the injuries to the injured person and also to any disease or tendency to disease caused by the injuries, the value of any rights which have accrued or will probably accrue to him therefrom in respect of disablement benefit (disregarding any increase thereof under section 57 in respect of constant attendance) for the five years beginning with the time when the cause of action accrued."

Mr. Paul Sreenan S.C. on behalf of the plaintiff drew specific attention to the provisions of s. 10 (3) of the Garda Síochána (Compensation) Act 1941. this provides :

"In every case in which compensation under this Act is awarded by the Minister, or by a judge of the High Court the compensation shall be a lump sum and the Minister or the Judge (as the case may be) in fixing the amount thereof –

(a) shall take into account the fact that if it is a fact that the applicant is entitled (under the statutes and statutory orders and regulations relating to the pensions of members of the Garda Síochána and their dependants, to a pension or allowance or gratuity at the public funds irrespective of the death or injuries which is or are the subject of the application but shall not regard the amount of such pension allowance or gratuity (if any) as a measure or standard by reference to which the amount of compensation is to be fixed…

In my view I am constrained by the terms of the legislation to find that no such deduction can be made. I make this finding for the following reasons:

1. Section 10 (3)(a) of the Garda Síochána (Compensation) Act 1941 mandates the Court to take into consideration entitlements to pensions of members of the Garda Síochána and their dependants. I do not believe that the category of payments in question here (disablement benefit and social welfare allowance) falls within that category.

2. I am by no means convinced that a claim under the Garda Síochána Compensation Acts constitutes "an action to recover damages in respect of a wrongful act resulting in personal injury" to employ the phraseology of s. 2 of the Civil Liability (Amendment) Act 1964.

3. Even if such a deduction did fall to be made under common law or pursuant to s. 75 (1) and (4) of the Social Welfare (Consolidation) Act 1993, it seems to me that such argument has a fatal flaw from the point of view of the lapse of time. I refer in particular to the provisions of s. 75 (4)(c) which specifically provides that account shall be taken in assessing compensation of rights to disablement benefit for the five years beginning with the time when the cause of action accrued. It seems to me therefore that were the provisions of the 1993 Act applicable, such provisions would only arise in relation to the taking into account of payments made within the five years beginning with the time when the cause of action accrued.

4. In my view, on the facts of this case, the "cause of action" accrued at the time of the date of incident, that is to say the 27^th February, 1999. This period has now elapsed. Accordingly, in my view no such payments of disablement benefit may be taken into account, nor should any deduction be made on the facts of this case having regard to the date of hearing (22^nd November, 2004).

Two other points have been raised in the course of the defence. The first of these refers to the possible application of Reddy v. Bates [1983] I.R. at page 141. The relevant principle is whether a deduction should be made for contingencies which arise in employment in the calculation of an actuarial loss into the future. In my view having regard to the plaintiff's employment as a member of An Garda Síochána such contingencies do not arise, and consequently I do not feel I am entitled to make any deduction under that heading.

Clearly the key principle of Reddy v. Bates does not apply in the light of the lump sum award I have made for loss of employment opportunity for the age period 57 to 65.

Conclusion

Having regard to the facts and the relevant law the plaintiff is therefore entitled to the compensation under the following headings:

Pain and suffering to date and into the future:	€85,000.00
Special damages agreed to date:	€31,790.18
Future loss of pension:	€34,000.00
Future loss of lump sum:	€29,500.00
Loss of earnings into the future to age 57:	€150,000.00
Loss of employment opportunity for age 57 to 65:	€15,000.00
Total:	€345,290.18.

The applicant is entitled to an award in the above sum together with the costs of the proceedings.