A.B. v Minister for Public Expenditure and Reform [2019] IEHC 741 (04 November 2019)
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[2019] IEHC 741
THE HIGH COURT
IN THE MATTER OF AN GARDA SÍOCHÁNA (COMPENSATION) ACTS, 1941 AND 1945
[2008 No. 324 SP]
BETWEEN
A.B.
APPLICANT
AND
THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM
RESPONDENT
JUDGMENT of Mr. Justice Twomey delivered on the 4th day of November, 2019
SUMMARY
1. This judgment deals with two issues. First it deals with a claim by a member of An Garda
Síochána who had his little finger broken during the course of his duties by a person being
deported. The applicant (“Garda B”) is claiming, as well as general damages for pain and
suffering, a figure of €310,893 in loss of earnings arising from this incident. This loss of
earnings figure is claimed on the basis that the incident in which his little finger was
broken led to him becoming depressed, which depression was the cause of his early
retirement from the force ten years early, at the age of 50.
2. Secondly, this judgment deals with a general issue affecting all cases taken under the
Garda Síochána (Compensation) Act, 1941 and the Garda Síochána (Compensation)
(Amendment) Act, 1945 (together “the Garda Compensation Acts”), namely the fact that
there is a 0% settlement rate for these cases, whereas for other personal injury claims
the settlement rate is said to be circa 90%. This lack of settlements means that the
taxpayer, at significant cost, is funding fully contested hearings in the High Court for
every single claim by a garda under the Garda Compensation Acts. As noted hereunder,
the obvious reason for this is that there is no financial incentive for the injured garda to
settle (unlike in other personal injury cases). Ironically there is in fact a financial incentive
for the applicant’s lawyers not to settle since they would, by settling, be forgoing the
costs they get for the hearing. This judgment considers how to improve on the settlement
rate of 0% and thereby lead to gardaí getting their compensation sooner and without the
stress of court hearings, thereby also saving the taxpayers millions of euro in legal costs.
Garda B’s claim for damages arising out of his broken little finger
3. As regards the applicant’s claim for compensation in this case, as it involves very personal
details about the applicant’s family, this Court has chosen to avoid publicising those
details unnecessarily and so has anonymised this written judgment.
4. Garda B’s injuries arise out of an incident that occurred on the 3rd July, 2000. On the
date in question, Garda B sustained an injury to his right hand during an attempt to
restrain a violent and aggressive deportee, who during the incident also bit one of Garda
B’s colleagues (the “July incident”). Garda B attended the Emergency Department
immediately after the incident where x-rays taken of his right hand revealed a fracture to
his little finger.
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5. Although the incident the subject of this application relates to a physical assault in which
he broke his little finger, Garda B’s injuries for which he is claiming compensation are
primarily psychiatric in nature. In particular, he is claiming that he suffered from
depression solely as a result of the July incident which led to his having to retire early
from the force and accordingly he is claiming, in addition to general damages, loss of
earnings of €310,893 from the Minister arising from his early retirement. Garda B retired
ten years early on medical grounds at the age of 50, in December, 2005, due to
depression.
6. The main focus of this case is the extent to which this depression was caused by the
incident in which Garda B was assaulted in July 2000 during which his little finger was
fractured and the extent to which this July incident can be said to have caused Garda B’s
early retirement and therefore the loss of earnings of €310,893 which he is claiming.
7. This case is different from a normal Garda Compensation case because of the conflicting
psychiatric medical evidence adduced before this Court and because of the significant
differing financial consequences of those conflicting medical opinions. Garda B’s
consultant psychiatrist, Dr. Denihan, gave oral evidence to the Court to the effect that it
was his view that the July incident was the sole cause of Garda B’s depression. In
contrast, the consultant psychiatrist for the State, Dr. Devitt, gave oral evidence to the
Court that the July incident was just one of the factors in the development of Garda B’s
depression.
8. For the reasons set out below, this Court found Dr. Devitt’s evidence to be more
convincing and this Court awards damages in respect of loss of earnings, not in the sum
of €310,893 as claimed by Garda B, but rather in the sum of €42,699. This sum is
awarded, along with other special damages (agreed between the parties) for out of
pocket expenses and general damages awarded by this Court for pain and suffering for
the injury to his little finger and for the depression. Therefore, the total award being
made to Garda B by this Court is €75,981.30.
Why is there a 0% settlement rate in Garda Compensation cases?
9. The second issue considered in this judgment is the fact that, unlike other personal injury
claims, where the settlement rate is anecdotally said to be close to 90%, it is the case
that in personal injury claims taken by gardaí under the Garda Compensation Acts, there
is a 0% settlement rate as evidenced by the fact that not one of the recorded 384 claims
made in recent years were settled.
10. The only winners from the fact that 100% of Garda Compensation cases go to a full
hearing in the High Court are the lawyers for the State and the lawyers for the applicant
garda who get paid for those High Court hearings, while the clear loser is the taxpayer,
who funds all of these legal costs, as well as the injured gardaí who have to wait to get
their compensation and who, as noted hereunder, sometimes suffer medically from the
delays and stress of court proceedings.
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11. It is this Court’s view that there is an onus on judges to look out for the interests of the
taxpayer, who is not represented in legal proceedings but who is funding the entire court
system. For this reason, this judgment considers how to improve on this 0% settlement
rate not just in the interests of the injured garda but also in the interests of the taxpayer.
This zero settlement rate is a startling statistic, although it is not surprising when one
considers that, not only is there is no financial incentive for an injured garda to settle
his/her claim without the need for a court hearing (unlike in other personal injury claims),
but there is in fact a financial incentive for the applicant’s lawyers not to settle. As noted
hereunder, there is no criticism of gardaí or the lawyers involved in these claims, since it
is the compensation system as it is currently operated which fails to encourage
settlement.
12. In the absence of legislative reform to allow minor Garda Compensation cases to be heard
by the District Court/Circuit Court or be dealt with by the PIAB, this judgment considers
how to seek to increase the 0% settlement rate by changes to practice, as distinct from
legislation, in the current system of garda compensation and thereby avoid gardaí having
to undergo stressful and time-consuming litigation to get their compensation.
13. First however this judgment will consider in detail Garda B’s claim for compensation. Then
it will consider in detail the proposed changes to practice in dealing with Garda
Compensation cases.
GARDA B’S CLAIM FOR COMPENSATION
14. While the majority of this judgment deals with the psychiatric injury suffered by Garda B,
he is also seeking compensation in respect of his physical injuries and so that will be
considered first.
Physical injury
15. The extent of the physical injury to Garda B’s hand is not in dispute between the parties
and, as a result, there is minimal focus in this judgment on that injury. The injury can be
summarised in the following way. Garda B was diagnosed with a fracture to the base of
his little finger of his right hand (the metacarpal bone). He received two injections and no
other treatment for the injury and he has made a full recovery. His injury is not
associated with any functional disability. While he was advised by his orthopaedic surgeon
that there was a possibility of the development of arthritis in the future, he has had no
difficulties of this nature in the 19 years since the July incident.
Calculating how much general damages to pay for an injury
16. As regards how a court calculates how much compensation should be paid for this
fracture to Garda B’s little finger, the case of O’Connell v. Martin; Ali v. Martin
[2019] IEHC 571 is the most recent judgment in which this Court considered how a court goes
about assessing general damages (i.e. for pain and suffering) and special damages (i.e.
for out of pocket expenses).
17. As a preliminary point, in O’Connell v. Martin, this Court noted that the Book of Quantum
is not binding on the courts in assessing what is a fair and reasonable amount for general
damages for personal injuries. Instead, what is binding on this Court’s assessment of
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damages in personal injury cases are the principles of the Court of Appeal and the
Supreme Court as set out below. Since the assessment of compensation in Garda
Compensation cases is to be undertaken in the same manner as the assessment of
damages in personal injury cases (per Irvine J. in Carey & Ors. v. Minister for Finance
[2010] IEHC 247 at para. 4.24 et seq), these principles bind this Court in the assessment
of damages for Garda B in this case. These principles are:
(i) The damages awarded must be fair to the plaintiff and defendant:
-
(ii) Modest damages should be awarded for minor injuries, moderate damages for
middling injuries and severe injuries should attract damages which are
distinguishable from catastrophic injuries:
-
(iii) Damages awarded should be proportionate to the cap (generally €450,000) for
general damages in order to avoid the concertina effect:
-
(iv) The award of damages is to be reasonable in light of general after-tax incomes
(which are in the region of €35,000 at present, per CSO statistics):
-
Sinnott v. Quinnsworth Ltd [1984] I.L.R.M. 523; McDonagh v. Sunday Newspapers
Ltd [2018] 2 I.R. 1,
(v) Appropriate scepticism should be applied to litigants’ claims:
-
Rosbeg Partners v. LK Shields Solicitors [2018] I.L.R.M. 305,
(vi) Common sense should be applied to the parties’ claims:
-
(vii) Caution should be taken by the Court when relying on expert reports:
-
Application of these principles to assess damages for Garda B
18. Having set out the principles which bind this Court in its assessment of damages, the next
step is to consider the application of these principles to Garda B’s injuries.
General damages for the fracture to the little finger
19. In Garda B’s case, this Court, in applying these principles regarding general damages,
concludes that the fracture to Garda B’s little finger is a relatively minor injury for the
very reason that the only treatment required was two injections and the injury has fully
healed.
20. In assessing the amount of general damages for Garda B’s physical injuries, it is
important to note that this is compensation for the pain and suffering endured by Garda B
in having his little finger broken. As such, it is separate from, and in addition to, any out
of pocket medical expenses which he incurred (as dealt with below) and it is also separate
from, and in addition to, any general damages for the psychiatric injuries resulting from
the subject incident.
General level of incomes
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21. In assessing the amount of compensation to be paid for the pain and suffering endured
by litigants who have suffered minor injuries such as this one, the most important of the
foregoing principles is, in this Court’s view, the fact it takes a person on the average wage
a full year to earn €35,000 in after-tax income.
22. Against this background, it is relevant to note the Book of Quantum suggests a figure of
between €14,600 and €32,200 for a “minor” fracture to the metacarpal bone in the hand.
This means of course that if say, an uninsured defendant negligently brushed against X
causing him to break his little finger and X got awarded damages of the upper figure in
the Book of Quantum, that defendant would have to pay €32,200 in damages for
accidentally breaking X’s little finger.
23. However, in assessing whether this is fair to the plaintiff and defendant as required by
Nolan v. Wirenski, it is clear, from the principles set down by O’Higgins C.J. in Sinnott v.
Quinnsworth, that regard must be had to the ‘general level of incomes’. While it might
take a very successful lawyer, professional or business person perhaps a matter of weeks
to earn €32,200, this is not relevant to the assessment of damages. Rather, it is clear
from Sinnott v. Quinnsworth, that it is the general level of incomes in Ireland that is
relevant and not those of high earners. In this regard, it is therefore relevant to note in
considering an award of €32,200 as suggested by the Book of Quantum, that it would
take an uninsured defendant on the average wage almost a year to earn that sum in
order to pay those damages for accidentally causing the broken little finger. To put it
another way, if this sum were to be awarded, a person who breaks his little finger is
entitled to the same amount of money as a person on the average wage would earn in
just under a year. In this Court’s view, this cannot be a fair and reasonable amount of
damages in this case for what the Book of Quantum itself describes as a ‘minor’ injury.
24. However, the Book of Quantum is not binding on this Court. What is binding are the
foregoing Court of Appeal and Supreme Court principles which emphasise, inter alia, the
relevance of the general level of incomes when calculating damages.
Award to be proportionate to cap on damages
25. Also relevant in calculating damages for pain and suffering for a minor injury is the
principle from Nolan v. Wirenski, that the award of damages should be proportionate to
the maximum amount of damages (generally of €450,000) payable for the most
catastrophic injuries, such as quadriplegia. Looking at it from this perspective, the sum of
€32,200 suggested by the Book of Quantum for a minor fracture of the metacarpal bone
is over 7% of that cap on damages. It cannot, in this Court’s view, be proportionate for a
person who sustains a broken little finger to get anywhere in the region of 7% of what
someone who sustains an injury such as quadriplegia would receive. It seems to this
Court that a minor injury like a broken finger merits an award of closer to 1% - 2% of the
cap on damages, rather than 7% - 10% of that amount.
26. In these circumstances, it is this Court’s view that the appropriate amount of general
damages for the pain and suffering endured by Garda B arising from the physical effects
(as distinct from the psychiatric effects – which are assessed below separately) of a
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broken little finger is €10,000. This is a sum that it would take a person on the average
wage just over 3 months to earn in after-tax income and is closer to 1% - 2% of the cap
on damages.
Special damages – medical expenses
27. Special damages have been agreed between the parties in respect of the medical
expenses arising from the physical and psychiatric effects of the injury to the finger in the
sum of €8,180.30. This Court will therefore also award this sum.
Special damages - loss of earnings of €310,893 claimed by Garda B
28. The main head of damage in this case and thus the main issue in the case remains the
extent to which Garda B’s psychiatric injuries can be attributed to the July incident when
his little finger was fractured.
29. Garda B claims that his depression and associated psychological symptoms were caused
solely by the July incident in which his little finger was broken and, on this basis, claims
that his early retirement from An Garda Síochána in 2005, at the age of 50, some 10
years earlier than the compulsory retirement age of 60, has led to a financial loss of
€310,893.
30. In addition, he is seeking general damages for the pain and suffering he endured arising
from this depression which he says was solely caused by the July incident.
31. As regards the loss of earnings claim, it is to be noted that of this figure of €310,893, a
significant portion of it (the sum of €112,350) is made up of Courts Act interest, much of
which is at the rate of 8% for the 19 years since 2000, as 8% was the applicable rate
prior to the introduction of a lower interest rate of 2% in January 2017.
32. Counsel for the Minister submitted that it was unusual for an actuarial report to
incorporate Courts Act interest in this manner. In light of principle (vii) above (from the
Supreme Court case of O’Leary v. Mercy Hospital, regarding exercising caution when
using expert reports), this Court would exclude this interest from the figure for loss of
earnings, since it is preferable not to be dealing with claims for Courts Act interest in an
actuarial report on loss of earnings.
33. This exclusion will reduce the loss of earnings claim from €310,893 to €198,543. In
addition, however, this Court proposes to reduce this figure further by deducting the
amount Garda B claims he lost by not being able to have worked part-time after his
retirement from the age of 60 to 65 (if he had retired at his normal retirement age of 60).
This is a sum of €32,157. This reduces the loss of earnings claim to €166,386.
34. The reason this Court has excluded this element of the loss of earnings claim, is because
the possibility of Garda B working after 60 appears, to this Court, to be somewhat
speculative. This is because as Garda B stated in cross examination:
“[W]ho knows at sixty, I might have decided ‘no, I don’t want to work’ but I’d like
to think that given the opportunity that I would have worked.”
Page 7 ⇓
Furthermore, on the basis of the evidence of Dr. Devitt regarding Garda B’s pre-existing
condition before the July incident and Dr. Devitt’s evidence regarding the likelihood of
other events, triggering Garda B’s depression (considered in detail below), it seems to
this Court that Garda B’s ability to engage in work after his retirement at 60, even if the
July incident had not occurred, is improbable.
35. However, the actuarial report of Mr. Brendan Lynch makes clear that from this sum of
€166,386 must be deducted two sums to take account of the fact that by retiring when he
did before the financial crisis in 2005, Garda B received a greater pension and gratuity
than he would have got if he had retired in 2015. Based on this actuarial report, this leads
to a deduction from this figure of €30,514 and €2,672, giving a net figure of €133,200 in
loss of earnings claimed.
36. This figure of €133,200 is only due to Garda B if the July incident leading to the injury to
his little finger could be said to be the sole cause of his depression and therefore his
absence from work during the years 2000 - 2005 and his retirement 10 years early from
the force in December 2005.
37. In this regard, the State accepts that the July incident was one of the factors in Garda B’s
depression, but it disputes that it was the sole cause of Garda B’s depression. Garda B
argues that the July incident was the sole cause of his depression, so that he is claiming
to be entitled to 100% of any general damages in respect of the pain and suffering
caused by this depression as well as 100% of the loss of earnings of €133,200 arising
from this depression.
38. However, it should be noted at this stage that the State does accept that Garda B’s
absence on sick leave in the period from the July incident in 2000 until his return to work
on the 27th February, 2001 was solely due to the July incident, since the relevant sick
certs refer to the broken finger as one of the causes of his absence during this period. On
this basis, the State accepts that a sum of €5,101.51 is due to Garda B in lost overtime
during this period. The State does not accept that any sick leave taken after this return to
work in February 2001 is solely due to the July incident, but rather it contends that it was
due to Garda B’s depression, which was caused by a number of factors, the July incident
being just one of them. It follows that this Court will make an award of €5,101.51 in loss
of earnings for the period from July 2000 to February 2001. Since the figure of €133,200
in loss of earnings sought by Garda B contains the figure of €5,101.51, the maximum
amount which Garda B can claim in loss of earnings (if the July incident was the sole
cause of his depression/early retirement) is €128,098.49.
39. The remainder of this part of the judgment will deal with the loss of earnings which
should be awarded for the period after February 2001 to the date when Garda B should
have retired in 2015 (at age 60) if he had not been forced by reason of his depression to
take early retirement, and in particular it considers the medical evidence regarding the
extent to which the July incident caused Garda B’s depression. In this regard, and for the
foregoing reasons, it is this figure of €128,098.49 which this Court will use to consider
Garda B’s loss of earnings claim, rather than the figure of €310,893 claimed by Garda B.
Page 8 ⇓
40. In reaching its decision, this Court must rely on the expert evidence before it. The expert
evidence adduced on behalf of Garda B is that 100% of the economic loss (now at a figure
of €128,098.49) is due to Garda B. The State’s expert evidence is that some of this figure
is due to Garda B, but not all of it.
General damages and special damages for psychiatric injuries
41. In relation to his psychiatric injuries following the July incident, Garda B was referred by
his GP to a consultant psychiatrist (“Dr. Denihan”) whom he appears to have first
attended on 18th September, 2000. He attended appointments with Dr. Denihan on a
further 21 occasions until 12th April, 2005, almost five years after the July incident.
42. Garda B was diagnosed by Dr. Denihan with “a Depressive Episode of Moderate Severity
with Somatic Syndrome”. Dr. Denihan noted that Garda B’s depression was accompanied
by anxiety, impaired concentration, sleep disturbance, panic attacks and difficulty coping
with the demands of work. He was treated with various anti-depressant medications and
augmentation with lithium carbonate, although the latter treatment was subsequently
discontinued as a result of the negative effects it had on Garda B’s eczemic skin condition.
Despite heavy dosage of anti-depressant treatment over a number of years, Garda B’s
illness persisted, and he continued to suffer from “residual depressive symptoms, anxiety,
irritability and difficult in coping with stress”.
43. The report of Dr. Denihan dated the 13th June, 2011 regarding Garda B notes that his
“clinical condition has been stable in recent years” and that his “mood state is now one of
protracted low-grade depression”. This report further notes that Garda B “manages
reasonably day-to-day” but “that he requires hypnotic medication to aid him sleep.”
44. This medical view regarding the stability of Garda B’s condition is reflected in Dr. Devitt’s
report dated the 9th May, 2013 which notes that Garda B initially suffered from a
depressive illness following the July incident but that his condition is now “relatively stable
on a day-to-day basis” and is expected to remain stable provided he is not exposed to
“undue stress”. Thankfully therefore, Garda B’s condition in recent years has been stable.
Key issue for determination
45. As noted at the outset of this judgment, the key issue for this Court is the extent to which
Garda B’s depression, which led to his early retirement, was caused by the July incident.
46. Dr. Denihan gave evidence to the Court that he was satisfied that the July incident in
which Garda B broke his little finger caused the depression. In legal terms therefore, this
supported a conclusion that the July incident when Garda B was assaulted and broke his
little finger was the sole cause of the depression and thus the cause of his early
retirement and so the cause of the financial loss arising from that early retirement of
€128,098.49. Yet for the reasons set out below, this Court does not agree with Dr.
Denihan’s conclusion, but rather agrees with the views of Dr. Devitt that the July incident
was but one of the causes of Garda B’s depression.
Evidence of the actual cause of Garda B’s depression
Page 9 ⇓
47. While Dr. Denihan was happy in 2019 in his evidence to this Court, to retrospectively
reach the conclusion, as he looked back over the past 19 years, that the sole cause of
Garda B’s depression was the July incident in 2000, this Court did not find this conclusion
compelling. This is particularly so when this conclusion is (i) contrasted with Dr. Devitt’s
conclusion (set out below) and also (ii) in light of the inconsistency of this conclusion in
2019 by Dr. Denihan with the contemporaneous medical reports and notes made at the
time when Garda B was being seen by Dr. Denihan and other doctors during the five
years post the July incident in 2000 up to Garda B’s early retirement in December 2005.
48. This inconsistency is evident to this Court because nowhere in these reports and notes is
there the conclusion, that Dr. Denihan is now reaching, that the sole cause of Garda B’s
depression was the July incident.
49. The inconsistency arises because in these medical reports and notes there is reference to
a history of anxiety prior to the July incident and there is also a reference to a significant
incident relating to Garda B’s annual leave which occurred in April 2000 (the “April
incident”) and thus only a couple of months prior to the July incident. This relatively
minor engagement between Garda B and his superior officer regarding annual leave, in
April 2000, led to what Dr. Denihan himself, in his Report dated 24th February, 2005,
describes as a “catastrophic reaction” on the part of Garda B.
50. This April incident occurred after Garda B had returned from a work trip to Hong Kong,
although the dispute over annual leave had nothing to do with the trip to Hong Kong,
save for the fact that it occurred when Garda B was very tired following his return home
after that trip.
51. On his return to work, Garda B was wrongly accused by his superior officer of taking a
day’s annual leave without recording it. While he was subsequently proved not to have
done so and the dispute was resolved, this engagement with his superior officer led to a
catastrophic reaction on Garda B’s part. According to Dr. Denihan’s report of 28th July,
2005 “he began to panic, shake and tremble when he was told about the problem relating
to his annual leave” and he had to go to his GP, who put him on sick leave for a week and
prescribed tranquilising medication and hypnotic mediation for his symptoms.
52. This inconsistency between Dr. Denihan’s conclusion that he has now reached and the
medical reports and notes is also evident because those documents make more
generalised references to the source of Garda B’s anxiety being the workplace and the
associated work-related stress, rather than the July incident, albeit that the July incident
is referenced also as one of the sources of that anxiety.
53. The following examples outline how the cause of Garda B’s depressive symptoms is not
stated in the (relatively) contemporaneous reports to be solely the July incident, but
rather there are multiple causes listed, including the April incident, anxiety developing
over a number of years and stress relating to work (as well as the July incident).
Page 10 ⇓
54. For example, there is a consultation note taken by Garda B’s GP, on the 25th August,
2000, which is after both the April incident and the July incident, and this note links Garda
B’s mental condition not to the July incident but rather to the April incident:
“Fractured right hand, assaulted by prisoner. Still suffering from anxiety/stress re
previous incident/Hong Kong. Refer Dr. Cian Denihan for opinion.”
55. Furthermore, in a report dated 6th March, 2006, the same GP links Garda B’s symptoms
to stress in the workplace in the following terms in his summary of his consultation with
him within a month of the July incident:
“Examination: This took place in my surgery on 25/8/2000. Garda B described
feeling acute anxiety and stress relating to work and felt unable to cope. […] Garda
B has a history of anxiety/depression dating back to a work related incident when
he went to Hong Kong in his line of duty and suffered some disciplinary
proceedings. [….] Garda B has a history of work related stress and was referred to
Dr C Denihan consultant psychiatrist for a specialist opinion.” [emphasis added]
56. In Dr. Denihan’s own Report dated 28th July, 2005, it is relevant to note that it is the
April incident, rather than the July incident, which is described as the start of Garda B’s
principal difficulties in the following terms:
“Mr B stated that his principal difficulties started circa April 2000, at which time he
escorted several deportees to Hong Kong. He said that he was exceedingly tired
after this journey and that stress ensued on his return home due to an error
relating to his annual leave. [……] He felt exceedingly stressed about this issue and
he was prescribed short term tranquilising and hypnotic medication.” [emphasis
added]
57. Later in this report, Dr. Denihan reports on Garda B’s view that his symptoms evolved
gradually over several years and he refers to work-related problems (in the plural) rather
than just the July incident:
“Mr B stated his confidence had deteriorated and this may have gradually evolved
over the course of several years, but he was uncertain as to whether such a
gradual timescale was accurate. In addition, he reported that he thought that his
discomfort in crowded places may have also evolved slowly over several years and
that he seemed to be less adept at making conversation and meeting new people.
Mr B stated that these difficulties had become much worse and troublesome in his
daily life since his recent work-related problems.” [emphasis added]
58. In a later report dated 13th June, 2011, Dr. Denihan again refers in the plural to the
cause of Garda B’s problems when he states:
“He still feels resentful on account of the traumatic experiences he suffered in the course
of his work, which triggered his depression and ultimately led to his retirement.”
[emphasis added]
Page 11 ⇓
59. In his 28th July, 2005 Report, the April incident, rather than the July incident, is linked to
Garda B’s depression in the following manner by Dr. Denihan:
“He reported that he was “shattered” on his return [from Hong Kong] and that he
started to panic, shake and tremble when he was told about the problem relating to
his annual leave. He said that he was exceedingly embarrassed, as work colleagues
saw the degree of his distress and that he had always felt that being depressed was
a sign of weakness.”
60. Dr. Denihan refers in the 28th July, 2005 Report to Garda B’s work-related issues (in the
plural) as the source of Garda B’s mental health problems in the following section of his
Report:
“I discussed the possibility of admitting him to hospital for inpatient treatment of
his depression, but he was reluctant to consider this option. He remained quite
preoccupied with work-related issues and fearful of how his colleagues would react
if they knew that he was depressed.”
61. Crucially, in his conclusion to the 28th July, 2005 Report, Dr. Denihan does not describe
the July incident as the sole cause of the depression, rather he states that Garda B’s
illness developed over several years:
“Mr B’s illness seems to have developed slowly over time, with gradual emergence
of anxiety and reduced self-confidence over several years. However, his symptoms
greatly intensified and he became moderately severely depressed in association
with work-related stress, including being the victim of an assault at work in July
2000.”
62. On the foregoing basis, this Court did not find Dr. Denihan’s evidence in 2019 compelling
regarding the July incident being the sole cause of Garda B’s depression, particularly
when there was other expert medical evidence from Dr. Devitt (considered next)
consistent with the relatively contemporaneous medical reports and notes. This is because
Dr. Devitt relied on these medical reports and notes as well as his own consultation with
Garda B to conclude that the July incident was but one of the factors in Garda B’s
depression.
Dr. Devitt’s evidence
63. The evidence of Dr. Devitt, on behalf of the State, is, in this Court’s view, consistent with
the medical reports and notes in the five years immediately after the July incident (parts
of which have been set out earlier in this judgment), which reports set out the April
incident, the July incident and work-place stress as possible causes of Garda B’s
depression.
64. In light of these reports and his consultation with Garda B, Dr. Devitt states, inter alia, in
his Report dated 9th May, 2013, that the April incident was a partial cause of Garda B’s
depression:
Page 12 ⇓
“It is likely, therefore, that Ex-Garda B had an underlying medical condition which
had not yet come to the fore and was partially triggered by the leave investigation
in April 2000. […]
65. In reaching his conclusion, Dr. Devitt also placed a considerable emphasis on Dr.
Denihan’s own Report dated 28th July, 2005 which he quotes from and which states that:
“Mr B’s illness seems to have developed slowly over time, with gradual emergence
of anxiety and reduced self-confidence over several years. However, his symptoms
greatly intensified and he became moderately severely depressed in association
with work-related stress, including being the victim of an assault at work in July
2000.”
66. In his own Report of 9th May, 2013, Dr. Devitt concludes:
“It is impossible to state definitively whether his condition would have remained
stable and not clinically significant had the incident of 03/07/2000 not occurred or
whether it would have manifested itself in any event.
As no other causes have been identified, it would be reasonable to state that the 2
incidents, the investigation of leave [the April incident] and the assault [the July
incident], in concert triggered the development of his illness, though it is likely the
assault made the larger contribution.”
While Dr. Devitt concludes in this section that between the April incident and the July
incident, the July incident was the greater factor in Garda B’s depression, it is also clear
from his reports and his evidence to the Court that he was of the view that there were
more than these two causes for Garda B’s depression.
67. In this regard, it is relevant to note that Dr. Devitt in this Report of 9th May, 2013,
identified the likelihood of some other event triggering Garda B’s depression, since he
states:
“11. Ex-Garda B’s apparent disproportionate emotional reaction to the assault and
his overall poor response to treatment would suggest at least the possibility that
some other event would have triggered his particular illness had the assault not
occurred.”
68. In this context, it is relevant to note that that Garda B had “additional major stress” in the
period 2013 - 2015 (noted in Dr. Denihan’s Report dated 3rd June, 2015) due to a delay
of four months in the purchase of a new family home and due to two suicide attempts by
his son in 2013. In Dr. Devitt’s subsequent Report dated 13th December, 2016, Dr. Devitt
states:
“In relation to Point 11 of my [earlier] report, “Ex-Garda B’s apparent
disproportionate emotional reaction [….], this comment now appears particularly
relevant given the mental health difficulties of his son in 2013.”
Page 13 ⇓
69. It is also relevant to note that in his evidence to this Court Dr. Devitt was of the view that
Garda B suffers from chronic Dysthymia which he compared to a personality disorder
which he believes he had prior to the April and July incidents in 2000.
70. Finally, in support of his conclusion that the July incident was but one of the factors in
Garda B’s depression, Dr. Devitt states in his Report of 5th July, 2013:
“Although the incident itself was a violent struggle, it does not appear to have been
particularly traumatic and ex-Garda B regarded his reaction to it is difficult to
understand.”
Total compensation for Garda B
71. Having considered all the evidence, this Court concludes that the July incident was but
one of the causes of Garda B’s depression, the other causes being the April incident and
work-related stress and the fact that Garda B had a personality disorder which preceded
the July incident and which was liable to lead to depression even if the July incident had
not occurred. This Court would therefore conclude that the July incident was but one of
several factors leading to Garda B’s early retirement on 16th December, 2005.
72. Since the State’s psychiatrist, Dr. Devitt, accepts that the July incident, in which Garda B
broke his little finger, was partly to blame for Garda B’s depression, this Court must
award damages to reflect this fact. In all these circumstances, this Court will award a
total sum of €75,981.30 to Garda B consisting of the following:
•
€10,000 for general damages for pain and suffering for the fractured little
finger,
•
€8,180.30 in agreed special damages/out-of-pocket medical expenses
associated with the depression and fractured finger,
•
€5,101.51 in agreed special damages/loss of earnings up to February 2001
due to absence on sick leave due to the broken finger,
•
€42,699 being that proportion of loss of earnings which this Court determines
was caused by the July incident in the period February 2001 to December
2015, and
•
€10,000 in general damages for the pain and suffering caused by his
depression to reflect that proportion of that depression which was caused by
the July incident.
73. That completes the first part of this judgment which deals with the claim for
compensation made by Garda B. This Court will now deal in the second part of the
judgment with the issue of there being a zero-settlement rate in cases brought under the
Garda Compensation Acts.
IMPROVING ON ZERO SETTLEMENT RATES IN GARDA CASES
74. It is important to note that in claims brought under the Garda Compensation Acts there is
no dispute regarding liability. This is because when an application to bring a claim is
authorised by the Minister for Public Expenditure and Reform, the State accepts that it is
Page 14 ⇓
liable to pay compensation to the injured garda for injuries sustained, which injuries are
invariably incurred during the course of their work.
75. Accordingly, the litigation between the parties under the Garda Compensation Acts, which
is subject to a fully contested hearing in the High Court, is simply about the amount of
compensation due to the applicant garda.
Legislative reforms in compensating injured gardaí
76. In 2018, this Court referenced some legislative reforms that might be made to more
speedily get compensation to members of An Garda Siochána who were injured during
the course of their duties, to save those gardaí from the often-traumatic experience of
having to attend court and to save the taxpayer having to fund the costs of court hearings
in the assessment of that compensation.
Hearings in the District Court or the Circuit Court with reduced legal costs
77. In particular, in Kampff v. Minister for Public Expenditure and Reform [2018] IEHC 371,
this Court referred to the fact that the majority of Garda Compensation claims did not
need to be heard in the High Court, which hearings are at significant cost to the taxpayer,
and where the majority of such claims merited damages on the District Court or Circuit
Court level as they deal with compensation for minor sprains and soft tissue injuries with
no claim for loss of earnings.
Assessment instead by PIAB with no legal costs
78. In the Kampff case, in order to save further on legal costs, it was suggested that Garda
Compensation cases could be heard with no legal costs at all, if heard by the Personal
Injuries Assessment Board (PIAB), a body which is specifically designed to deal with the
assessment of damages due in personal injury cases (since Garda Compensation cases
are assessment only cases). In this regard, in the Kampff judgment, this Court sought
submissions from the Chief State Solicitor’s Office on the actual amount per annum spent
on legal costs in Garda Compensation cases. As it is awaiting those submissions, it is not
in a position to give an accurate figure for the costs involved. However, based on an
average of 100 hearings in Garda Compensation cases a year, with legal costs on average
of say €10,000 - €20,000 per claim (for the solicitor(s) and barrister(s) for the State and
for the solicitor(s) and barrister(s) for the applicant), one is dealing with a cost to the
taxpayer in the millions of euro.
Having some financial incentive for Garda Compensation claims to be settled
79. If, however, Garda Compensation cases are to continue to be heard in the High Court (or
any other court), this Court noted in the Kampff case, that there was no good reason why
those cases should not settle just as in other personal injury cases. If Garda
Compensation cases were to settle at a rate similar to other personal injury cases there
would be a significant saving for taxpayers (since the State invariably pays the costs of
legal representation at the hearing for both the applicant and the respondent) and also in
a saving of court resources (which are also funded by the taxpayer).
80. This Court pointed out that there is currently no financial incentive for injured gardaí to
avoid a hearing (unlike the position with other personal injury plaintiffs). This is because
Page 15 ⇓
the provisions regarding the lodgement into court of sums to settle a claim, which applies
to all other personal injury litigants under Order 22 of the RSC, do not apply to Garda
Compensation Cases.
81. These lodgement into court provisions under the RSC provide a very strong incentive for
other personal injury plaintiffs, on the advice of their lawyers, to accept any reasonable
sum which is lodged into court. This is for the very simple reason that if the court-award
fails to beat the lodgement, the plaintiff is likely to have to pay for the legal costs of the
hearing and thereby effectively end up with a reduced award.
82. It seems to this Court patently obvious that the absence of lodgement provisions applying
to Garda Compensation cases has led to the current situation where the settlement rate
of those cases is nil, in contrast to other personal injury cases where the settlement rate
is very high. To put it starkly, if there is no financial incentive for an injured garda to
settle, why would he/she settle?
83. While this Court does not have statistics in relation to the actual settlement rate for other
personal injury cases, for present purposes only, it is assumed to be circa 90% based on
anecdotal evidence to that effect. A settlement rate of 90% leads to a very significant
saving in legal costs to the parties in those cases and to the taxpayer in savings in court
resources, which saving is not made in Garda Compensation cases.
Financial incentive not to settle Garda Compensation cases
84. However, it is not just that there is no financial incentive for an injured garda to settle, it
is also the case that there is a financial incentive for the garda’s lawyer not to settle the
case. This is because if a case settles, the lawyer would forgo the costs of the hearing
that would inevitably be awarded at the conclusion of the case, since it is an assessment
only case (where the liability of the State, to compensate for the injury and therefore to
pay the costs of the hearing, is not disputed).
85. The effect of there being in effect a financial incentive for lawyers acting for garda
applicants not to settle their cases is starkly illustrated by the following statistics
regarding the resolution of Garda Compensation claims taken from the Courts Service
website:
Year Incoming
Resolved
by court
out of court
2017 149
2016 173
2015 76
2014 125
113 0
83
0
67
0
121 0
86. Thus, in the four most recent years for which statistics are available, 2014 to 2017, not
one of the 384 claims for personal injuries by gardaí was settled and so the State paid
High Court legal costs for fully contested hearings in 100% of the claims made under the
Page 16 ⇓
Garda Compensation Acts. This contrasts with circa 10% of claims for other personal
injuries which go to fully contested hearings.
87. Thus, in other personal injury claims (where a plaintiff and his/her lawyer are at risk of
not getting their legal costs for the hearing), defendants and their insurance companies
are usually only paying legal costs for hearings (and court resources are only required) in
circa 10% of the total number of claims. In contrast, the State currently pays legal costs
for hearings in 100% of Garda Compensation claims.
88. This zero settlement rate is a startling statistic, particularly since the costs of not settling
and having fully contested hearings in every single case are borne by the taxpayer, who
pays for the lawyers on both sides at those hearings and who funds the court staff to hear
the cases. Of course, while a startling statistic, it is not a surprising statistic, for the
reason stated, namely that there is a financial incentive for the applicant garda’s lawyer
not to settle.
89. However, this low settlement rate is not a criticism of the gardaí or their lawyers in not
settling. This is because firstly to settle there has to be an offer from the State and in the
past 18 months, when dealing with costs, this Court has not been advised of any instance
in which an offer was made to a guard which was not accepted. Indeed, the zero
settlement rate in the years 2014 - 2017 would seem to indicate that there is a practice
on the part of the State of not making offers in these cases as a matter of course. The
second reason there is no criticism of gardaí and their lawyers for this low settlement rate
is because both would be acting contrary to their financial interests (and people do not
generally act against their financial interests) if they were to settle the case. This is
because collectively they are guaranteed to receive more money from the State by not
settling, since they receive the costs of the hearing in addition to the compensation. The
reason they receive these costs as a matter of course is because there is no practice in
Garda Compensation cases of offers being made and therefore of costs not being awarded
where rejected offers are not beaten by the court award.
90. Lawyers and their clients can only operate the system that is before them and it is the
current system of garda compensation and how it is operated that needs to change so
that it has similar financial incentives for gardaí to settle their compensation claims as
currently apply to persons seeking compensation for personal injuries.
Benefits to gardaí of their getting compensation without court hearings
91. More important than the costs savings to the State of improving the zero-settlement rate,
is the fact that settling compensation claims would be of considerable benefit to injured
gardaí. This is because, first, a settlement should result in their getting the compensation
sooner than if they had to wait for a court assessment. Secondly, and more significantly,
settling a compensation case will mean that gardaí will get their compensation without the
stress of a public court hearing in which they have to relive sometimes life-threatening
situations.
Page 17 ⇓
92. In this regard, there is an inherent contradiction in an adversarial court-based
compensation scheme (whether general personal injuries litigation or under the Garda
Compensation scheme) which can have negative consequences for some injured plaintiffs
seeking compensation. This contradiction exists because, on the one hand, it would be
natural for a plaintiff’s lawyer to feel that the measure of his/her success is the size of the
award made by the Court. The logic of this position is that the greater the pain and
suffering exhibited by the plaintiff at the time of the hearing (which could take place
number of years after the subject event), the more successful the lawyer is likely to be in
achieving a large award of damages. On the other hand, the irony of such an approach is
that, as noted hereunder, this emphasis on the past and/or continuing negative physical
and emotional aspects of an event may be counterproductive for the mental or physical
health of the plaintiff.
93. For this reason, in some cases there may be a very clear conflict between a successful
outcome medically on the one hand (which may involve a positive outlook and ‘moving
on’ by a plaintiff) and a successful outcome legally on the other hand (with an emphasis
on how bad the outlook is and the experience has been). It is for this reason, it seems,
that in the Garda Compensation List, it is not uncommon for a doctor to comment in
medical reports on the negative impact of litigation on the health of injured gardaí,
particularly where he/she has to re-live a particularly harrowing experience in order to get
compensation.
94. By coincidence, in a Garda Compensation case taken by another garda, Garda D, heard
by this Court on the same day as this judgment was delivered, a doctor in his medical
report stated:
“It is likely that the Garda Compensation proceedings of themselves are stressful
for [Garda D] and force her to recount and relive the traumatic events of the day.
The sooner her action is settled, the better it will be for her.” [Emphasis added]
95. It seems clear therefore to this Court that early settlement of Garda Compensation cases
is not just in the financial interests of gardaí (by enabling them to get their compensation
sooner) and in the financial interests of the State (by a saving in legal costs) but also,
most significantly of all, in the interests of the physical and mental health of the injured
gardaí, who on a daily basis put their bodies on the line for the security and safety of the
State’s citizens.
How to increase the settlement rate without legislation
96. The changes suggested by this Court in 2018 in the Kampff case to reduce the costs
incurred in Garda Compensation cases (i.e. by the hearing of the majority of the cases in
the District and Circuit Courts and/or the assessment of compensation by the PIAB and/or
the application of the lodgement system to Garda Compensation claims) require
legislation. In the very uncertain political and legislative climate which exists at present, it
is perhaps understandable that this legislative reform has not received priority.
Page 18 ⇓
97. However, there are some changes in practice which this Court can implement to
encourage (a) the State to make reasonable offers of compensation to gardaí at an early
stage and (b) gardaí to accept any reasonable offers, which would lead not just to savings
to the taxpayer, but which would also lead to injured gardaí getting their compensation
sooner and without the need to undergo court proceedings.
98. In this regard, while Order 22 of the RSC (lodgements into court to settle claims) would
require legislation to apply to Garda Compensation claims, it is the case that Order 99,
Rule 1A of the RSC, which sets out the effect, on costs awards, of written offers, is not
precluded from applying to Garda Compensation cases. This rule is broad enough to
entitle a Court to refuse to grant a plaintiff/applicant their costs, or to award costs against
him/her, for the costs incurred after a written offer is declined, where that offer is not
then beaten by the court-award.
99. Accordingly, this Court has no hesitation in seeking to ensure that written offers are made
to injured garda applicants wherever practicable in order to avoid the need for contested
hearings and thereby save on legal costs, but also to ensure that injured gardaí get their
compensation sooner rather than later.
100. In making this change in practice, this Court does so because of the public interest in
encouraging litigants to resolve their differences themselves, and to only resort to court
hearings where absolutely necessary. This is clearly not the case in Garda Compensation
claims at present, where 100% of such claims go to a contested hearing. It seems clear
that this is because gardaí seeking compensation under the Garda Compensation Acts, as
it is currently operated, are entitled to litigate for that compensation without any financial
consequences. In a different context (namely regarding whether a controller of a
company should be personally liable for a costs order against that company), in the case
of W.L. Construction Limited v. Chawke [2019] IESC 74 at para. 67, O’ Malley J. quoted
Clarke J. in relation to:
“the need to prevent persons litigating on a consequence-free basis”.
This principle is clearly applicable to all types of litigation. It follows that if a garda is
offered reasonable compensation which he/she refuses and instead demands a full
hearing in the High Court of the compensation claim, this hearing, which is at the cost of
the taxpayer, should not be on a consequence-free basis. At para. 27, O’Malley J.
described the policy justification to award costs against a litigant in the course of litigation
designed for his benefit (which the Garda Compensation litigation is), in the following
terms:
“One policy justification for the jurisdiction is described in paragraph 4.12 [of
Moorview Developments Ltd & Ors. v. First Active plc & Ors. [2018] 2 I.L.R.M.
403] as being to prevent parties having a “free ride” as to how they conduct
litigation designed for their benefit, without there being a risk of a meaningful
costs order against them. It was noted that procedural failures by parties in the
course of litigation are normally dealt with by costs
orders, rather than by
Page 19 ⇓
any order that might affect the substantive outcome of the case. This could be
futile if parties were effectively absolved from the potential consequences.”
101. In the context of Garda Compensation cases, it seems clear that the reason that there is
a zero settlement rate is because injured applicants are in fact given a ‘free ride’ in
relation to the need for High Court hearings to determine their compensation and the
change to practice considered below is aimed at removing this ‘free ride’ in order to
encourage settlement.
102. More generally, the fact that there is a public interest, in court resources only being used
where the parties themselves fail to reach a settlement, is clear from the judgment of
Gilligan J. in Carpenter v. Stoneavon Holdings Ltd [2016] 1 I.R. 367. Speaking in the
context of the lodgement procedures under Order 22 of the RSC, he states at para. 17:
“[..] the public interest is best served by allowing defendants to proffer to the
plaintiff utilising the facility of the Courts a sum that the defendant considers
adequately meets the plaintiff’s claim. Again the underlying rationale for this view is
for the bringing about of a reasonable resolution of the proceedings and a potential
reduction in respect of legal costs that will necessarily be incurred if matters have
to proceed to a full and potentially lengthy trial allied to the necessity of the Courts
to efficiently use the resources available to them for the efficient disposal of
litigation.”
103. While Gilligan J. identified this public interest in the context of the lodgement procedures
under Order 22, it seems clear to this Court that the public interest, in bringing about the
resolution of proceedings without court hearings, is of general application to all court
proceedings. Regardless of whether the proceedings involve gardaí seeking compensation
under the Garda Compensation Acts or whether involving a dispute between commercial
entities, as in the Carpenter case.
104. The public policy aspect of encouraging settlements was also identified by Laffoy J. in Re
Skytours Ltd; Doyle v. Bergin [2011] 4 IR 676 at para. 14. In the context of written
offers under Order 99, Rule 1A, she states:
“As is the case with the lodgement, or tender offer in lieu of lodgement,
procedure provided for in Order 22, the rationale underlying rule 1A of Order
99 is obviously to encourage compromise of legal claims with a view to
shortening the duration of civil litigation. That is clearly a rational policy
which the Court should implement where it is just and fair to do so.”
105. It is this Court’s view that, in light of the need to avoid consequence-free litigation
identified by O’Malley J. in W.L. Construction, the public interest identified by Gilligan J. in
Carpenter and the public policy identified by Laffoy J. in Re Skytours, it is the
responsibility of the Courts to make whatever changes in practice are justified and legally
permissible to ensure that court resources, which are funded by the taxpayer, are used as
efficiently as possible.
Page 20 ⇓
106. This public policy means that disputes (whether about how much a garda is entitled to in
compensation or otherwise) should only end up in court as a last resort, where the parties
themselves have tried everything to resolve their dispute (whether through settlement
negotiations, written offers, mediation or otherwise).
107. It is patently clear that if, as is clearly the case, 100% of Garda Compensation cases go
to a contested hearing in the High Court, then a court hearing is not the last resort in
Garda Compensation cases, but rather the first and only resort, at considerable expense
to taxpayers.
Absence of written offers by the State?
108. It seems likely from the foregoing statistics that written offers are not being made by the
State, at all, or on a regular basis. It may well be the case that it is not the practice of
the State to make offers in Garda Compensation cases as it would prefer the
compensation to be determined by a completely independent body, i.e. the Court, rather
than having the Minister or the Garda Commissioner as the employer of the injured garda
determine ‘internally’ how much to offer an injured garda. Indeed, for this reason it is
possible that these parties may welcome a court direction to make offers to injured
gardaí. In any case, the current apparent absence of offers and associated costs
consequences comes at a considerable cost to the taxpayer and places an unnecessary
strain on court resources.
109. It is also of course the case that if an offer is made, an applicant garda does not have to
accept it and he/she can choose to have the High Court determine the compensation if
he/she so wishes. It seems clear that the offer from the State will only be accepted if the
applicant regards it as a good offer. Hence, this Court sees very good policy reasons for
obliging the State to make written offers in every case, in order to seek to settle the
claims. Furthermore, the State, as the respondent to almost 200 awards made by this
Court in the past 18 months, should have little difficulty in most cases, in making what it
regards as a reasonable offer of compensation so as to avoid the necessity and cost of a
court hearing, particularly as many of them will relate to relatively minor injuries.
110. In these circumstances, this Court has no hesitation in (i) making a change in practice
which will require the Minister (the State) in Garda Compensation cases to make a written
offer in an attempt to settle compensation claims and (ii) confirming that this Court will
rely on the terms of Order 99, Rule 1A of the RSC to decide whether an applicant is
entitled to their legal costs for a hearing where the applicant refuses an offer which is
equal or greater than the award made by the Court.
Changes to practice
111. On this basis, it is this Court’s view that the following changes should be made to improve
the current settlement rate in Garda Compensation cases and to reduce the number of
hearings, thereby making savings for the tax payer in the amount of legal costs it pays
for hearings, making a saving in court resources and speeding up the payment of
compensation to injured gardaí and enabling them to avoid court proceedings. Most
significant of all, and based on the expert medical evidence heard on a weekly basis by
Page 21 ⇓
this Court, this change in practice should lead to injured gardaí having better medical
outcomes by avoiding stressful court proceedings:
(i) Within 7 days, or as soon as practicable thereafter, of the date when a case on the
Garda Compensation List is set down for hearing for the assessment of the amount
of compensation payable to the Applicant, the Respondent should, save for good
reason, write to the Applicant with an offer in writing offering to satisfy the whole of
the Applicant’s claim.
(ii) Prior to the commencement of a hearing, the Respondent must confirm to the Court
whether or not such a written offer has been made. If made, the Applicant should
confirm to the Court that it has not been accepted by the Applicant before the
hearing proceeds.
(iii) Where, at the conclusion of the hearing, an Applicant receives an award of
compensation which is greater than the offer, the Court will, save for cause in
accordance with s. 7(2)(h) of the Garda Síochána (Compensation) Act, 1941,
exercise its discretion in relation to the awarding of costs by awarding the Applicant
his or her entire legal costs.
(iv) If the compensation awarded by the Court is equal or less than the written offer,
the Respondent should provide the Court with details of the written offer before an
order for costs is made by the Court and then the Court will, in accordance with
Order 99, Rule 1A of the Rules of the Superior Courts have regard to the terms of
that written offer in determining whether there is cause to justify the Court in
awarding costs to the Applicant only up to the date of the written offer.
112. Should counsel for the State or counsel for applicants wish to make any submissions in
relation to this change in practice, this Court gives liberty for submissions to be made and
accordingly this proposed change in practice will not yet take effect.
Result: Applicant awarded general damages and special damages. Changes to practice in Garda Compensation cases (see paragraph 111).
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