A landmark High Court decision dealing with the operation of the Garda Siochana compensation scheme may result in Gardai who sustain minor injuries on duty being refused compensation.
A recent test case dealing with the Garda Siochana Compensation Act in which three Gardai sought compensation for injuries maliciously inflicted on them, established that the Minister for Justice could refuse to allow compensation claims from Gardai to proceed where the Minister concluded that the injuries were “minor in nature”.
The Gardai claimed that they had sustained anxiety disorders which their Consultant psychiatrists confirmed were recognised psychiatric injuries. These cases are more commonly referred to as “fear of diseases” cases.
Judge Mary Irvine found that in a large number of cases the transmission risk of disease was zero and that consequently Doctors should not be testing Garda when there is a negligible or zero risk of infection – such as a splash of blood onto intact skin or cases involving saliva only.
She said that in many cases blood testing over a three and six month period was unnecessary and as a result, if Gardai attended the appropriate infectios disease specialisst for advice, any anxiety suffered by Gardai would be confined to a very short period of time.
In her Judgement, she recommended that the Garda authorities prepare an advisory pamphlet setting out the nature of the viruses, how they are transmitted, when testing should be done, when the imposition of restrictions on a persons sexual and sporting life are warranted and suggested the immediate availability of treatment, such as prophylaxis to all gardai
She recommended that they be made available in every Garda station so that in the event of an assault causing a member to fear infection, they could immediately refer to these pamphlets for reassurance.
If accurate information and adequate reassurance could be provided to members of the Gardai as to the nature of these infections diseases and the minimal risks of infection, even in cases where blood testing may be justified and even allowing for a members private life being restricted over a 6 months period, that these injuries would be classified as best as minor in nature and insufficient to force the Minister to grant authorisations for leave to apply for compensation before the High Court.
In awarding damages of €6,000.00, €7,000.00 and €15,000.00 to the three Gardai the Judge also clarified the law in relation to how damages are to be assessed. The Judge stated that there was nothing in the Act which suggested that the Court should not approach compensation in the same manner as it would approach the issue of damages in an ordinary personal injury claim.
The Judge accepted in all three cases that the Gardai had suffered from anxiety disorders and physical injuries and therefore the awards would therefore appear to be quite low.
An award of €6,000.00 does not even exceed the District Court Jurisdiction and would be open to criticism. The Judge indicated that all Gardai have a duty to mitigate their loss and that if a Garda is assaulted and had a fear that he may have been affected with HIV and/or hepatitis that they should immediately try and ascertain the disease status of their assailant and that if they failed to do so that this could be taken into account by the Court in the assessment of damages.
This would appear to be an unfair burden to be placed on Gardai who in many cases have no ability to force their attackers to provide blood tests.
The State heavily contested this test case and it would appear that future Garda Siochana Compensation claims coming before the High Court will be vigorously contested, both in relation to the issues of liability, causation and damages.
Gardai will feel aggrieved by this Judgement, which on the one hand confirms that their cases are to be dealt with in the same manner as ordinary personal injuries claims, but on the other hand, they are not being awarded the same levels of compensation.
They also face the prospect of future claims for compensation being refused at first instance by the Department of Justice. This may lead to further litigation in that many Gardai may decide to challenge the Ministers decision by way of Judicial Review.
All in all, this Judgment has raised more questions than it has answered.
Section 6(b) of the Garda Siochana Compensation Act 1941 provides:-
If the injuries are of a minor character sustained in the course of ordinary duties, the Minister must refuse the application.
Notes for the Editor
The State has paid more than 30 million in the past 2 years in compensation and legal fees for injuries suffered by Gardai during the course of their duties. All cases are initially dealt with by the Department of Justice, to whom the injured member applies for compensation. The minister for Justice, then exercises powers conferred under the Garda Siochana (Compensation) Act 1951 authorises the applicants to apply to the High Court for compensation once he is satisfied that the injuries companied are not minor in nature.
