No member of An Garda Síochána who is injured in the course of their duty has an automatic right to compensation. To succeed in a claim under the Garda Síochána (Compensation) Act 1941, the member must prove that their injury was maliciously inflicted and that it is not a minor injury. If the injury was not of itself serious an applicant must demonstrate that it was sustained in circumstances involving special risk thus justifying compensation.
There is considerable uncertainty at present as to how the High Court is assessing compensation for pain and suffering for injured members. Two awards of €8,000 and €5,000 were made in 2018, which were some of the lowest awards made in Garda Compensation cases for many years and this has raised doubts as to the effectiveness of the current scheme to deliver prompt and adequate compensation to injured gardaí. There is no bar preventing injured members from taking legal action against any other party who may have negligently caused and / or contributed to their injuries. This can be done in parallel with an application under the Act and may be preferable rather than waiting many years for a Garda Compensation case to be concluded with the possibility of damages, well below the figures under the Injuries Board book of Quantum, ultimately being awarded. However, the member cannot receive ‘double’ compensation for the same injury.
The member may decide to forego the claim under the Act and take the more advantageous Civil Claim. For example, if a garda is injured when pursuing a suspect because a homeowner hasn’t repaired a dangerous roof or a floor, the member won’t be covered under the Act but would be entitled to pursue a claim against the occupier. There are many other examples where the more appropriate action is against another insured wrongdoer rather than under the Scheme.
The Minister has a discretion not to allow ‘minor’ injuries to receive an authorisation for compensation and the Department has been enthusiastic over the last four years in rejecting claims on this ground. The problem for members is that it can take the Minister many years to refuse the application. At that stage any possible civil claim against another potential defendant would be Statute Barred. The refusal also can only be challenged by way of Judicial Review which is very expensive and not without risks.
To combat these refusals, members should get comprehensive medical reports from their treating doctors and continue to adhere to any treatment regimes recommended. All suspected fractures should be immediately investigated and reports obtained from radiologists to ensure there is no doubt that a fracture was sustained as this diagnosis may later be challenged by the State’s own doctors.
However, once the Minister eventually authorises an applicant to maintain proceedings for compensation, even if the Court is of the view that the injuries are minor, the Judge must proceed to award compensation under the Act once satisfied that the Act applies to those injuries.
There have been a number of decisions by the Court of Appeal over the last three years in which they have dramatically reduced the level of general damages awarded to injured people in Ireland. All of this has impacted on some awards made under the Scheme.
This is supported by the statistics which show that the average award made to injured members in 2017 was just over €43,679.25, while in the first six months of 2018, the average award had fallen by nearly 45% to just over €25,000.
The most significant judgement in 2018 was in the case of Niall Kampff v The Minister for Public Expenditure and Reform. That case concerned a claim for compensation in respect of a soft tissue hand injury sustained by Garda Kampff while trying to arrest a suspect. His Counsel directed the Court to the Book of Quantum where awards in the range of circa €21,700 were provided for similar injuries.
The Court held that the Book of Quantum was not binding on the Court when assessing awards under the Scheme and awarded District Court levels of damages of €5,000 for the pain and suffering suffered by the member. The Judge in assessing damages for pain and suffering felt he must have regard to the cap on general damages at €500,000 for catastrophic injuries, the recalibration downwards of awards since the introduction of the Court of Appeal and the average earnings of Irish workers.
Conversely, in a Judgement delivered by Mr Justice Bernard Barton on April 17 2018, in a Garda Compensation case of N.B. v the Minister for Public Expenditure and Reform, the applicant who sustained an injury to her right arm and also was psychologically affected following a serious assault on July 23 2015, was awarded a sum of €50,000 for damages, which is more in line with the figures provided for in the Book of Quantum.
Therefore, there seems to be inconsistency in the methodology of assessment of general damages and also in the level of awards. This has created uncertainty with regard to efforts to settle and value garda injury claims.
The Department has published a new Garda Síochána (Compensation) Bill 2017, which would allow for future malicious injury claims to be brought to the Personal Injuries Assessment Board and removed from the Courts altogether (other than appeals). Minor injuries will now attract compensation and importantly compensation levels must be assessed in line with the Injuries Board Book of Quantum.
It remains to be seen if the new Bill, when enacted, will increase the period of time in which claims are resolved but it should ensure more consistency in the levels of awards to injured members.
Liam Moloney is the senior partner in Moloney Solicitors www.moloneysolicitors.ie