Callanan v. Minister for Finance [2000] IEHC 206 (6th December, 2000)

1. In the early hours of Wednesday the 21st of July 1999 the late Sergeant Andrew Callanan met his death in horrific circumstances when he was engulfed in flames while attempting to contain an arsonist at Tallaght Garda Station. He was rushed to nearby Tallaght Hospital but was pronounced dead at 5.31 a.m. I am told criminal proceedings are pending in connection with this event.

2. The Applicant is Sergeant Callanan’s widow and she brings these proceedings on the authorisation of the Minister for Justice Equality and Law Reform on her own behalf and on behalf of her three children namely Stephen, who was 5 1/2 in July 1999 and her twin daughters Jennifer and Sophie, who were then 2 1/2.

3. The other dependants of the late Sergeant Callanan are his father Denis and his sisters Helen, Rita, Siobhan, Kate and Mary. These have all executed waivers in favour of the Applicant and her three children.

4. The parties have reached agreement on the financial loss and special damage elements of the claim and, having heard evidence from Brendan Lynch, actuary, I have made an interim award in the sum of £644,900, apportioning £527,900 to the Applicant, £36,000 to Stephen and £40,500 to each of the twins Jennifer and Sophie.

5. This Judgment deals, accordingly, with the sole head of damages identified at Section 10 (1) (a) (iv) of the Garda Síochána (Compensation Act, 1941) (hereinafter the 1941 Act) as substituted by Section 2 (2) of the Garda Síochána (Compensation) (Amendment) Act 1945 (hereinafter the 1945 Act). Section 10 (1) (a) (iv) of the 1941 Act as amended where relevant provides

“(a) the compensation shall be such sum as the Judge thinks reasonable having regard to all the circumstances of the case and, in fixing the amount thereof the Judge, in addition to the matters which he is required by Subsection (3) of this Section to take into consideration, shall - (4) have regard to any loss (other than financial loss) sustained by the Applicant...”

6. The matters to which the Judge must have regard under Subsection (3) relate to the entitlement of the Applicant to a state funded pension or similar in respect of the death or injuries in the case and to costs and expenses incurred in an application under the Grand Jury (Ireland) Act, 1836. Neither of these is relevant in the present case.

7. Accordingly, my task is to assess compensation in such a sum as I think reasonable having regard to all the circumstances of the case and in fixing that amount I must have regard to any loss (other than financial loss) sustained by the Applicant.

8. The parties are represented by experienced Counsel who are in disagreement not only as to any sum under this heading but also as to the basis upon which such sum should be calculated. Accordingly a review of the law is necessary.

9. The Act of 1941 required the Judge hearing an application for compensation to be satisfied inter alia, that the Applicant had suffered loss by the death in question (see Section 8 (1)(d)). Compensation was to be awarded “in accordance with this Act” and Section 10 (1) set out general provisions which apply to fixing the amount of compensation in respect of a death. These referred to funeral and surgical expenses, the financial benefits which might reasonably be expected to have been received in the future by the Applicant but for the death, and any award made prior thereto.

10. There was no reference to the compensation being “such sum as the Judge thinks reasonable having regard to all the circumstances” as there was in the 1945 Act nor indeed to “any loss (other than financial loss) sustained by the Applicant”.

In O’Brien -v- Minister for Finance (No. 1) [1944] IR 392 the Supreme Court held that any benefits actually received by the Applicants or to which they became entitled by reason of the death of the deceased should be taken into account in valuing the compensation and deducted therefrom if just and reasonable.

“Compensation in the case of the widow, for loss of her husband, in the case of the children, for loss of their father. and in the case of both, for the break-up of the home and loss of parental guidance, help and other advantages, should be taken into consideration only in so far as the Court

12. The 1945 Act was enacted in response to this decision and explicitly reversed the effect of the first of these findings with the result that the bequests and such like under a will were to be disregarded and went on, as I have indicated, to stipulate that Compensation should be “such sum as a Judge thinks reasonable having regard to all the circumstances of the case..” and require the Judge in fixing the amount thereof to have regard, inter alia, to “any loss (other than financial loss) sustained by the Applicant.”

13. The 1945 Act made these amendments retrospective and provided for supplemental awards to correct the perceived shortcomings in the application of the earlier act. Accordingly Mrs. O’Brien brought a second case and in O’Brien -v- the Minister for Finance (No. 2) [1946]: IR 314 the then president Maguire P. applied the new Act and held, inter alia, at (p 318) that the subsection to which I have referred enabled him to award compensation for the loss identified by the words quoted above from Sullivan C. J. in O’Brien (No. 1) but without the limitation imposed by the words appearing in bold in the extract therefrom which I have cited above.

14. Accordingly the Court under the new Act is not confined to awarding compensation “only insofar as the Court reasonably anticipates that pecuniary loss would be likely to result” from the loss of a husband, father and homemaker. Maguire P. having reached his conclusion went on to say that he found the task of measuring this loss in terms of money extremely difficult. There were no standards to go on and there was (then) no reported case. Since then there have been reported cases and notably one unreported case namely Reid and Others -v- Minister for Finance High Court (Budd J) 29th July, 1996, unreported, where the learned Judge surveys many cases that assisted him in assessing the amount of compensation.

In Reid Budd J. acknowledged that O’Brien (No. 2) was the touchstone and considered that the application of the O’Brien (No. 2) principles could be extended by further refinements; he acknowledged that there was no jurisdiction to grant an award of general damages. This is clearly binding on the High Court as an explicit decision of the Supreme Court in O’Brien (No. 1) and in my view must be accepted as binding upon me notwithstanding the obiter dictum of Walsh J. in the Supreme Court decision in O’Looney -v- the Minister for the Public Service [1986] IR 543, at page 546, where he says

“when one examines the structures of the Acts and compares the provisions made in respect of fatal cases and cases not resulting in death, it is quite clear that the intention of the Oireachtas was to put the members of the Garda Síochána in virtually the same position as persons who bring actions for death or personal injury caused by negligence .”

15. I propose to adopt the same approach as my learned colleague in Reid but before attempting to summarise my approach to this case as a result, I must deal first with one specific submission made by Ms. McDonagh B.L., on behalf of the Defendant to the effect that compensation for the loss of her husband to the Applicant, for the loss of their father to the children and for the loss to all of them for the break-up of their home and the loss of parental guidance, help and other advantages (to use of concepts set down by Maguire P. in O’Brien (No. 2) ) should be in the amount that would be awarded for “mental distress” under the Civil Liability Act.

Budd J. in Reid on the health, happiness and well being) of the applicant and each of her children. I must, therefore, sever part of what would come under the consideration of “mental distress” in the Civil Liability code and equally supplement it with other considerations;

3. I agree, therefore, with Budd J. in Reid that the Garda Compensation Acts have more to do with the loss of society of the applicant’s husband and the father of her children than with the initial shock caused by his death bearing in mind also (as I feel I must under the authorities) that the main purpose of the code is to compensate for pecuniary loss.

4. In O’Brien (No. 1) the very fact that the 1941 Act did not explicitly provide for full compensation was held by the Supreme Court to exclude it: by the same token, the very fact that neither the Act of 1941 nor 1945 alludes to the Civil Liability Act or to mental distress thereunder indicates that there is no statutory requirement to apply it.

17. Insofar as consideration of cases generally were of assistance to Budd J. in Reid I acknowledge that these may be of some relevance but I would, in this connection note particularly and adopt the approach of Geoghegan J. in Coppinger v Waterford County Council High Court (Geoghegan J) 22 March, 1996, unreported, in commenting on the observations of O’Flaherty J. in McKinley -v- Minister for Defence [1992] 2 IR 333.

18. In light of the foregoing I approach the assessment of the remaining head of compensation bearing in mind that the amount thereof is not limited to pecuniary loss, that the amount must be reasonable in all the circumstances, it must be somewhat less than

“I am also in agreement with the view as I believe, of my colleague Lord Justice Ronan, that in the case of the widow, the loss of consortium, or nervous or physical breakdown, through grief or shock, should be generously estimated...”

19. Compensation under this remaining head of damages is not limited to the amounts which would be available under the heading of mental distress in the Civil Liability code and finally assistance may be derived from cases dealing with such concepts as consortium (where relevant, which is not the case in the present instance) or solatium as indicated by Budd J. in Reid.

20. Chief Superintendent Noel Smith gave evidence of the late Sergeant Callanan’s death as already summarised in the introduction to this judgment. He said Sergeant Callanan had taken the exam for inspector in May of 1993 and was on the verge of being promoted. He had progressed fast and favourably through the force, was an extremely fine man, had been selected to train for the Pulse Computer Programme and was the kind of man who would take on responsibility and see the job through. In Tallaght he had between 16 - 20 people under him for six years and he was held in the highest esteem, both for his leadership qualities and for his humane dealings with everybody. The public had come to the station in droves after his death to offer condolences.

then had to tell the three children. She has been trying to adjust and to cope ever since that moment. She found the newspaper publicity particularly distressing, she had had a career as a cashier with The General Accident Insurance Company and had lived in Bodenstown and then in Bray with her husband and children and had continued and enjoyed her chosen career. She had intended to continue this indefinitely. Since her husband’s death she has remained at home because she is needed there and cannot foresee returning to her career. Since her husband’s death she has had to learn to drive a car but she would have preferred not to have had to.

22. Since her husband’s death she has not had any social life and does not want to have one. While she has good relations with her in-laws and his colleagues she has become somewhat isolated in the past 14 or 15 months. She visits her doctor every month on her own account as well as for her children. She has to have tablets to cope and has had to learn cooking since her husband’s death because he did most of the cooking when he was alive.

23. Her son Stephen has some good weeks and other weeks when he is in bad form. He had a very good relationship with his father: the twins too were very close to him and he gave a lot of time to them. They were very demanding and required full time attention. She finds it difficult at times with the children: sometimes in games they asked her to play “daddy”. She said she sometimes is cross with the children and has to take on the role of both parents as best she can. She tried counselling but did not find it helpful, but has just started a new counsellor and proposes to continue with him.

24. My impression of the applicant when giving her evidence is that she is a young woman (still in her thirties) who is still deeply traumatised and debilitated by the death of her husband. She found projecting her voice burdensome, I thought to the point of being almost distasteful, (something which on its own would not necessarily distinguish her

25. Dr. Maureen Gaffney, Consulting Psychologist, gave evidence of the general psychological consequences of a traumatic death of a husband and father. Where the loss of a primary attachment figure is unexpected, sudden, traumatic and frightening the risk of ongoing psychological distress and in the case of children, development problems is greater than the simple loss of a primary attachment bond. The fact that the surviving parent is herself distressed, depressed, overwhelmed and psychologically preoccupied exposes the children to increased risk of developmental harm. The fact that one child was 5 and the twins were 2 meant that as young children they were even more vulnerable to the loss of a parent and at risk of temper tantrums (as the evidence shows in the case of Stephen) and of aggressive and attention seeking behaviours. The fact that the Applicant is herself a young woman means that she had no opportunity to prepare herself mentally for the loss of her spouse. Moreover, the fact that there are infant twins puts extra strain on all relationships as twins require two parents.

26. Psychological research has shown that having a primary attachment bond provides us with a “safe haven” and a “secure base” to whom the family members can turn when distressed, frightened, insecure or in trouble thereby providing a defence to physical or psychological disorder. Studies have shown that widows and widowers are more likely to suffer a range of psychological and physical ill health than their married counterparts. Equally the loss of a parent before the age of 12 puts children at more risk of psychological disorders, particularly depression in adult life. Having a secure primary attachment figure frees up mental energy from a preoccupation with seeking security and enables it instead to go out into the world to face and cope with developmental challenges. This is particularly so in the case of children. The death of a parent has been found to be associated with regressive

behaviour in the case of young children. A primary attachment figure cannot be replaced by the presence of others, even family members, no matter how valued. The result is an enduring feeling of loneliness. The loss of an attachment figure triggers a series of psychological reactions which are exacerbated in the case of the loss of a primary attachment figure. If the death in addition was sudden and in traumatic circumstances, these reactions are likely to be significantly more debilitating and long lasting.

27. After an initial period of debilitating anxiety and disbelief with enduring psychological preoccupation and intense yearning for the missing person, there is a period of despair, psychological disorganisation accompanied by sleeping and eating disorders, social withdrawal and profound loneliness and sorrow. This period of despair and disorganisation lasts for many months. In the first few months approximately 30% - 40% of adults can be classified as clinically depressed. After 12 months 18% to 30% of adults continue to exhibit symptoms of depression. After 24 to 30 months 18% are still showing signs of depression i.e., about twice the base rate in the non-bereaved population. Even healthy individuals continue to dream, cry over and yearn for a deceased partner many years after a bereavement.

28. The final phase of mourning leads to a psychological reorganisation that enables the bereaved person to return to normal activities. Unless the attachment figure is replaced, however, the emotional gap remains. In the case of a bereaved spouse and children such a replacement is frequently neither possible nor desired. Studies have shown that grief can be further complicated if the loss was so sudden and traumatic that the bereaved person cannot psychologically register the loss. This “numbing” can prevent the normal course of mourning taking place and can lead to unresolved grief. This can be evidenced by delayed mourning, where the bereaved exhibits a relative absence of grief, which can, in the long term lead to psychological difficulties or chronic mourning, characterised by protracted grief and difficulty in normal functioning resulting in clinical depression and anxiety. New scientific

methods have revealed that unresolved loss of a significant figure can lead to a condition known as disorganised attachment in childhood (between 15% - 35%) and unresolved attachment in adulthood (in approximately 19%). These conditions are more likely to arise where the loss was traumatic and frightening.

29. In children disorganised attachment can lead to significant emotional and behavioural problems and leave them more vulnerable to a range of psychological disorders and in the case of adults it can significantly impair their parenting ability, particularly their ability to impart basic security to the child. This condition can cross generations so that the parent with unresolved attachment is significantly more likely to have a child diagnosed with disorganised attachment who in turn, when he or she becomes a parent, is more likely to have a child diagnosed with the same condition.

30. In the case of parents who have unresolved grief they have a 75% chance that their children will have disorganised attachment which compares with a 20% chance in the normal population. For a widow to have to take on a range of activities which had been done by her deceased husband is a constant stress and reminder of his loss provoking feelings of sadness, helplessness, irritability and anger at the deceased for having “put” her in this position. These feelings of anger can in turn provoke feelings of guilt and further sadness. In the case of Sergeant Callanan who took a highly active role in the traditional male activities of house maintenance as well as cooking, this means that Mrs. Callanan is daily faced with the task of performing all of these activities when she is least psychologically equipped to learn new skills. Widows find it difficult to integrate into social life which is normally couple based.

31. In regard to the loss of a father there is the loss of his role which facilitates development of gender identity for both girls and boys. Consequences include shyness and withdrawn behaviour on the part of daughters when they reach adolescence and

“hyper-masculine” behaviour (aggressiveness and high risk taking) on the part of boys at the same period. The highly specific way fathers play with children is thought to be a significant factor in the development of problem-solving and exploratory behaviour which are related to cognitive and school competence. A father can model a set of cognitive, social, emotional and coping strategies and styles that are likely to be different from those of the mother giving the children a wide range of coping strategies from which to choose the ones best suited to their own personalities. A supportive father significantly affects the mother’s own ability to parent positively and can counterbalance any vulnerabilities and weaknesses in her style.

In the case of the Applicant the primary bond with her husband will not be substituted by a social network and will leave her with an aching loneliness. The children will not replace him until they fall in love, and for a widow falling in love may not be desirable or her chosen option. Long term loneliness is probably likely to be her companion.

In the case of children under eleven who suffer the loss of a father they can become exceptionally conscientious and they often become very mature people early, being robbed of their childhood and so when they face life’s vicissitudes they may not have adequate reserves. When the children are at their adolescent stage they will be changing quickly and they will be trying for their parents. At this stage parents rely on the other partner for reassurance and guidance as from someone who knows the children better than anyone else.

At the “milestones” there will always be an enduring sense of loneliness and while one can “get used” to the loss, it can surface on many occasions and the children have an added vulnerability to the risk of psychological disorder because they may not be able to cope as well as they might in normal circumstances, Dr Stephen Matthews said he was a General Practitioner in Enniskerry and knew the Applicant and her children as their family doctor since 1997. Immediately after her

husband’s death the Applicant held up very well but later became depressed. She could not drive and he called around frequently to her house. By November, 1999 she was suffering from severe depressive episodes and he put her on medication. He knew from having dealt with her minor illnesses beforehand that she did not like to take medication unless it was necessary, however, having discussed it with her they agreed that she should go on medication as she had a biological depressive illness. After three months she was better and he changed the medication and some of the edge had been taken off her severe symptoms. She was still, however, depressed. The initial dosage was 50 mg a day which was standard, but later he increased it to 100 mg a day and the Applicant remains on that dosage to date. Her depression is quite recalcitrant and has not now been fully treated. In August of this year (2000) she herself came off medication for two or three weeks but had to go back to it quite quickly. She will remain on 100 mg a day into the future and he could not see her being taken off that dosage in the short term. He does not feel that the Applicant is well.

With regard to the children, the Applicant brought them along with her as soon as she learned to drive. Stephen’s behaviour was unpredictable in that it oscillated between being quite well sometimes and being irrational, angry and having temper tantrums at other times. In the case of the twins he thought that at age five there could be problems when they begin to compare themselves with other children. They could become curious at that stage about the circumstances of their father’s death but there is not a great deal that one could do about this medically.

Dr Matthews said he thought the Applicant could benefit from counselling; at the moment she is very emotionally vulnerable; he thought that in addition to pharmacological intervention she should in the future avail of cognitive psychotherapy. He felt that her condition would require regular review. He did not consider referring her to a psychiatric consultant because in his view her depression was uncomplicated in that it was

not accompanied by psychotic features that would not respond to medication. He would later discuss her case with a psychotherapist. He did not think that by November after her husband’s death her depression was purely reactive. At that stage she was suffering from anhedonia, which is an inability to enjoy life. It was very difficult to anticipate whether she will make a full and complete recovery.

Stephen exhibited minor childhood illnesses, again he did not consider referring him to a psychiatrist. His pattern of being unpredictable showed occasional glimmers of hope and he had temper tantrums beyond those typical of his age, which was slightly older than when one would expect them to appear. Before his father’s death Stephen had been a placid, well behaved boy.

Adopting the approach to the estimation of compensation which I have indicated in the foregoing to the evidence which I have heard and which is summarised above, in my judgment the Applicant is entitled to the following additional amounts of compensation for loss other than financial loss sustained by her and her children.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Callanan v. Minister for Finance [2000] IEHC 206 (6th December, 2000) URL: http://www.bailii.org/ie/cases/IEHC/2000/206.html Cite as: [2000] IEHC 206

High Court of Ireland Decisions

Callanan v. Minister for Finance [2000] IEHC 206 (6th December, 2000)