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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Nolan v. Minister for Justice, Equality and Law Reform [2003] IEHC 10 (20 May 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/10.html Cite as: [2003] IEHC 10 |
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JUDICIAL REVIEW
[2000 No 3815 J.R.]
BETWEEN
APPLICANT
RESPONDENTS
JUDGMENT of Quirke J. delivered the 20th day of May 2003.
By order of the High Court (O Caoimh J.) the applicant was granted leave to apply by way of judicial review for various reliefs against the first named respondent (the Minister) arising out of a refusal by the Minister to grant to the applicant an extension of the time limited by s.5 of the Garda Siochana (Compensation) Act 1941 (the Act of 1941) within which the applicant might apply to the Minister for compensation under that Act.FACTS
The applicant who is a retired member of An Garda Siochana is now 49 years old and resides in rented accommodation in Wexford town which he shares with his wife and four children. He joined An Garda Siochana in August 1974 and having completed training served as a member of the Gardai with an unblemished record in various locations throughout the State until he was discharged from the force on medical grounds on the 6th February, 1996.This subsequent assault gave rise to a claim by the applicant under the Garda Siochana (Compensation) Act 1941 which was confined to a claim for physical injuries to his neck. It did not include any claim in respect of psychological or other
mental injury or illness although he had in fact suffered from psychiatric symptoms between 1980 and 1982 and had been seen by a consultant physician Dr. McKiernan who referred him to Mrs. C. Lee, Consultant Psychiatrist on the 3rd June, 1982.
Throughout the succeeding eleven years his psychological condition deteriorated and he lived in a state of constant fear suffering flashbacks related to the 1980 incident and other symptoms which greatly affected his working and domestic life. In early 1993 he was examined by the garda surgeon who directed that he was unsuitable to drive patrol cars or to carry firearms because of his condition and because of the medication which was needed to treat it. On the 17th January, 1996, Dr. Mary Boyle who was then the garda surgeon examined the applicant, found him to be suffering from "phobic anxiety and depression" and certified that he was " ... so incapacitated by infirmity of mind that he is unable to perform his duties ...". By letter dated the 29th January, 1996 Dr. Boyle described the applicant's condition in the following terms:#"This member has had ongoing psychiatric problems dating back to his assaults on duty in 1980 and 1982. Since this time he has been on continuous medication and has had numerous periods of sickness absence. He has been unable to do regular Garda duties and has been on restrictive duties but even with this his symptoms appeared to have deteriorated.
I feel to continue as a member of An Garda Siochana would be detrimental to this member's health and I feel it would also lead to prolonged periods of sickness absence and poor performance. As a result of this, I
Referring to the applicant by letter dated the 10th March, 1999, the then garda surgeon G. McCarthy advised the Assistant Commissioner of the Garda Siochana that:recommend he be discharged from the Force on medical grounds and I have filed the appropriate D33, which is enclosed."
After he was directed by the garda surgeon that he should not drive a patrol car or carry a firearm the applicant became increasingly concerned that he might have sustained a significant injury and in January, 1995, he received a comprehensive report from the Consultant Psychiatrist Dr. Lee which confirmed his concern and thereafter he consulted his solicitors who by letter dated the 16th February, 1995, wrote to the Minister seeking an extension of time within which to submit an application for compensation under the Garda Siochana (Compensation) Act, 1941. Sixteen months later, on the 27th June, 1996, the applicant was advised that the matter had now been referred to the Chief State Solicitor and the Office of the Attorney General for advice and after the expiration of a further two and a half years the applicant, on the 16th December, 1998, finally received a meaningful response from Mr. John A. Shelly of the Garda Conciliation and Arbitration Division."Based on information received concerning this retired member his case should be considered relative to his claim for compensation on the grounds that his condition may be totally attributed to the trauma sustained in the incident in 1980."
"Our legal advice is that the Minister must also take account of the provisions of the Statute of Limitations (Amendment) Act, 1991 which provides, inter alia, for limitation periods of three (or even six) years to be taken into account.
The accuracy of that advice has, quite properly, not been questioned in these proceedings. On the 25th January, 1999, a comprehensive submission on behalf of the applicant was delivered to the Minister and subsequently a submission was made by Mr. Shelly to a Mr. Folan who was then Assistant Secretary to the Department of Justice, Equality and Law Reform which concluded (at para. 8) in the following terms:In view of this advice I propose to make a submission on the application to the Minister before the end of January and I am to invite you to make further submissions on behalf of your client before a final decision is issued ..."
"As Mr. Nolan made a successful application under the Compensation Acts in respect of an injury in 1982 he was obviously aware of the provisions of the Acts. This leads me to believe that in 1980 he may have thought that his physical injuries were not serious enough to support a claim under the Acts. Because of the seriousness of the injuries which have caused Mr. Nolan to be medically discharged from the Force, I would be inclined to be as positive as possible in relation to the application and I would recommend that 1994 be accepted as the date which the applicant became aware that the injuries he
On the 16th March, 1999, a handwritten memorandum appears to have been sent to Mr. Shelly in the following terms:was suffering were due to the incident in 1980 and accordingly I believe, the application meets the provision of the 1991 Statute of Limitations Act and 1 would recommend that the Solicitor be informed that the claim is being accepted."
"John,
I would be concerned about the potential precedent and also the possible scale of any award.
We do not seem to have dealt conclusively with the AG's specific query re alternative route such as ex-gratia payment, even a significant one, - on a once-only basis perhaps.
Also re Surgeon. We have his view but no view or recommendation from Commissioner.
By letter dated the 27th July, 1999, the Assistant Commissioner of the Garda Siochana advised Mr. Shelly in the following terms:Pat."
" ... ex-Garda Nolan was medically discharged on the 6th February, 1996 due to psychiatric problems. He was awarded a special pension.
His application for compensation in relation to the incident that occurred on the 29th October, 1980, was examined thoroughly by this Branch and I am satisfied that an assault did occur in October, 1980 resulting in ex-Garda Nolan receiving injuries. In light of the foregoing it is difficult to see
On the 29th September, 1999, Mr. Shelly wrote to the Secretary General of the Department of Finance outlining the circumstances which had given rise to the applicant's claim. It concluded:any grounds for opposing this application and therefore perhaps an ex-gratia payment could be examined."
"If we are to accept that Mr. Nolan only became aware in 1994 (even though he was attending a psychiatrist on and off since 1982) that he was suffering from a significant injury i.e. phobic anxiety and depression relating back to the 1980 incident then the claim submitted in October 1995 would be acceptable within the meaning of the 1991 Statute of Limitations Act. In the report dated the 21st January, 1995, ... Consultant Psychiatrist Dr. Lee gives the opinion that the October, 1980 assault has resulted in the development of the symptoms of post traumatic stress and anxiety in Mr. Nolan.
On 10th March, 1999, ... the garda surgeon Dr. McCarthy (now deceased) gave an opinion that the Nolan case should be considered relative to his claim for compensation on the grounds that his condition may be totally attributed to the trauma sustained in the incident in 1980. The Garda Commissioner in a minute dated 27th July, 1999, ... suggests that it is difficult to see any grounds for opposing the application but requests that the payment on an ex-gratia basis be examined.
In view of the advice from the CSSO this department would prefer if an ex-gratia payment be made to Mr. Nolan rather than processing the claim under the Compensation Act which would be a precedent which could have serious consequences for the Department in other late notice claims.
By letter dated the 8th October, 1999, Mr. J. O'Farrell, Principal Officer in the Department of Finance responded in the following terms:Accordingly I am to request your Department's sanction to engage the CSSO to enter discussions with a view to agreeing an ex-gratia payment to ex-Garda Nolan."
By letter dated the 27th October, 1999 Mr. Shelly replied to Mr. O'Farrell's letter requesting that the decision to refuse to sanction an ex-gratia payment to the applicant be reviewed stating, inter alia, that:"I am directed by the Minister for Finance to refer to your letter ... concerning the above. In reply, I am to refer to the enormous potential liabilities that would arise for the exchequer if a precedent were established for the making of payments in cases where the exchequer is protected by the statute of limitations. Accordingly it is regretted that this Department cannot sanction an ex-gratia payment in the circumstances outlined."
Mr. O'Farrell replied in the following terms by letter dated the 5th November, 1999:"This Department considers that this documentation which links ex-Garda Nolan's discharge from the Force on medical grounds back to his assaults in 1980 and 1982 could make his claim an exceptional one... ....However, in view of the concerns expressed by the Attorney General and contained in the letter dated the 31st July, 1998, from the Chief State Solicitor's Office that there is a potentially large liability and that the authorisation of the claim may set a precedent, this Department is not inclined to authorise the claim"
"This Department notes and fully concurs with your Department's view, in the light, inter alia, of the concern voiced by the Attorney General and the
enormous liability to the exchequer, that the claim should not be authorised. Indeed, based on service - wide experience with litigation, this Department has little doubt that such an authorisation would (rather than "may") set a precedent. Also, (while your Department would have the relevant statistics) this Department would be surprised if it was really all that exceptional for there to be a link between assaults and other trauma/injuries and subsequent discharge or earlier retirement on medical grounds.
Regrettably, the key considerations pertaining to the potential authorisation of the claim (e.g. the establishment of a precedent, creation of a large potential liability to the exchequer) would apply to an ex-gratia payment also ...
By memorandum dated-the 11th April, 2000, Mr. Shelly advised the then Assistant Secretary of the Department of Justice, Equality and Law Reform of the circumstances which had given rise to the applicant's application, concluding inter alia that:Regretfully, therefore, this Department must adhere to the decision in its letter of 8th October (i.e. that in view of the enormous potential liability to the exchequer it cannot agree to the making of payments in cases where the exchequer is protected by the Statute of Limitations)."
"5. In the letter from the Chief State Solicitor dated 31st July, 1998, ... the Attorney General warns of the potential large liability of this case which would be out of the Department's control if granted. He also advised that there is no obligation on the Minister to grant an authorisation and expresses concern that should an authorisation be granted that a precedent may be set
6. The advice from the Attorney General ... that there is a potentially large liability and that this would be outside the Department's control if an authorisation is granted. It added that there is no obligation to grant an authorisation and expressed concern that should an authorisation be granted it may set a precedent. At Tab (W) the Attorney General's Office re-states this.
7. The Department of Finance were approached in relation to the issue of making an ex gratia payment to Garda Nolan and refused to sanction the payment on an ex-gratia basis because of the precedent it will establish to make a payment where the exchequer is protected by the statute of limitations.
In an affidavit sworn on the 30th January, 2001, Mr. Diarmuid Cole indicated that he was Assistant Secretary in charge of garda administration in the Department of the Minister in April, 2000. He stated that on the 11th April, 2000, the papers in relation to the applicant's claim including the full departmental file came before him for a decision as to whether or not to authorise the applicant's claim for compensation. He continued that he had considered carefully both the reports of Dr. Lee and the submissions of the applicant and claimed, (at para. 9), that having considered the provisions of s. 2(1) of the Statute of Limitations (Amendment)Act, 1991 ("the Statute") he had concluded that the applicant must have known in the aftermath of the incident of 1980 and certainly following his referral to Dr. Lee in 1982:8. The compensation claim has not yet being formally refused. Accordingly I recommend that the claim be formally refused and that a letter on the lines of the draft PQ. reply be issued to Hughes Murphy & Company Solicitors."
(a) that he had been injured;
(b) that the injury was significant and;
He rejected the allegation contained in the applicant's affidavit that in reaching his decision he was influenced by matters which were of no relevance to the case stating that he did not believe that a precedent would have been set had authorisation been given and he said that he was not influenced by the potential size of the award which might be made. Mr. Cole was cross examined at some length in relation to the contents of his affidavit. He stated that he had never in fact had the opportunity to consider any of the papers in relation to the applicant before the- 11th April, 2000, which was the date when the file was put before him. He indicated that he "knew the claim was out there" and had some general information relative to its nature. He confirmed that the 11th April, 2000 was a Tuesday and was-the precise date upon which the Minister was required to provide an answer in the Dail to a parliamentary question in relation to the plaintiffs claim which had been put down on the preceding Thursday.(c) that the injury was attributable in whole or in part to the events of the 30th October, 1980.
He confirmed further that on the morning of the 11th April, he "would have" received the departmental file to which Mr. Shelly's memorandum of the same date would have been attached together with a draft answer to the parliamentary question in the following terms:
"The Garda Siochana (Compensation) Act, 1941 provides that an application for compensation under the Act shall be made within three months after the
day on which such injuries were inflicted or within such longer time as the Minister shall allow in any particular case.
The position in respect of the case raised by the Deputy, is that the application for compensation was made, more than fourteen years after the incident occurred. The matter has been examined in detail and the advice of the Attorney General has also being obtained. I regret that l am not in a position to issue an authorisation allowing the case to go to the High Court under the terms of the Act.
Mr. Cole stated that he made no written record of his decision or the reasons therefor and he made no notes in relation to any perusal of the papers which had come before him. He stated that his decision was indicated by an 'X' which he stated he had placed beside the final paragraph (para. 8) of Mr. Shelly's memorandum of the same date. Mr. Shelly had made no other copy of his memorandum at that time. Mr. Cole stated that he had placed the letter X beside that paragraph as an indication of his decision and he regarded the mark which he had made, (together with the draft answer to the parliamentary question), as comprising the actual decision itself. Copies of the memorandum were made for the purposes of these proceedings. The mark which was referred to by Mr. Cole in evidence was present upon some copies of the memorandum but appeared to be missing from others.The question of making an ex-gratia payment has also being examined in consultation with the Minister for Finance but it has not being possible to agree to make an ex-gratia payment in the circumstances of this case."
IRRATIONALITY
It is contended on behalf of the applicant that the decision of the Minister to refuse to grant to the applicant an extension of the time limited by s.5 of the Act of 1941 was unreasonable or irrational to such an extent as to require the Court to quash the decision on that ground. Intervention of the kind which is sought will not be warranted unless this Court, having considered and applied well established principles is satisfied that the decision maker had before him "... no relevant material which would support (his) decision" (see: O'Keeffe v. An Bord Pleanala [1993] 1 I.R. 39).The following speech of Lord Brightman in R v. The Chief Constable of North Wales Police, exp Evans, [1982] 1 WLR 1155 (at p. 1160) was adopted by Griffin J. in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642-and endorsed by Finlay C.J. in O'Keeffe (supra):"The court cannot interfere with the decision of an administrative decision-making authority merely on the grounds that (a) it is satisfied that on the facts as found it will have raised different inferences and conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it."
In the instant case the Court cannot concern itself with the merits of the application made on behalf of the applicant for an extension of the time limited by s.5 of the Act of 1941. It is confined to the conduct of a review of the manner in which the decision was made and cannot intervene unless satisfied either (a) that the Minister had before him no relevant material which would support his decision or (b)"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power ... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made."
that his decision was fundamentally at variance with reason and common sense or (c) that the Minister flagrantly rejected or disregarded fundamental reason or common sense in reaching his decision (see O'Keeffe (supra))."
CONCLUSIONS
The discretion conferred upon the Minister to extend the time limited by s.5 of the Act of 1941 is not absolute in character. It is a qualified discretion which must be exercised in a quasi judicial manner. In the instant case the Minister, in exercising his discretion to grant or refuse the extension sought by the applicant was required to take into account the provisions of the Statute insofar as they affected the applicant and he was properly and correctly advised of that obligation. It follows that in the exercise of his discretion the Minister was required to consider the precise terms of s.2 (1)(a)(b) and (c) of the Statute and to take it carefully into account having regard to the circumstances outlined on behalf of the applicant. The following relevant material was before Mr. Cole when he made his decision on the 11th April, 2000:1. The submission from the applicant dated the 25th January, 1999, strongly claiming that the injury which caused the applicant's incapacity was directly related to the incident in 1980 and that he did not become aware of its significance until 1993.
2. Letters from garda surgeon Mary Boyle dated the 17th January, 1996 and the 29th January, 1996, recommending the applicant's discharge from the Gardai on the grounds of the injuries relating to the assaults in 1980 and 1982.
3. A letter from the garda surgeon McCarthy dated the 10th March, 1999, indicating the applicant's condition could be totally attributed to the trauma sustained at the incident in 1980.
4. Correspondence and memoranda from Mr. Shelly to the applicant and to Mr. Folan recommending that 1994 be accepted as the date when the applicant became aware that the injuries he was suffering were due to the incident in 1980-together with other memoranda and replies.
5. Dr. Lee's Report dated the 21st January, 1995.
6. Advice from the Office of the Attorney General.
7. A letter from the Assistant Commissioner of An Garda Siochana dated the 27th July, 1999, indicating satisfaction that the incident in 1990 resulted in the applicant receiving injuries and suggesting that it was difficult to see any grounds for opposing his application.
8. Mr. Shelly's memorandum to the Secretary General of the Department of Finance indicating that the applicant's claim was "... acceptable" within the meaning of the Statute, referring to medical opinion and garda opinion that there were no grounds for opposing the application and suggesting an ex-gratia payment to avoid creating a precedent.
9. Mr. O'Farrell's reply dated the 8th October, and Mr. Shelly's request for a review of that reply dated the 27th October, 1999.
10. Mr. Shelly's memorandum dated the 11th April, 2000.
11. Whilst Mr. Shelly had initially given some consideration to the question of when the applicant became aware that he was suffering from a significant injury Mr. O'Farrell and in particular Mr. Cole addressed the issue which Mr. Cole was required to determine on the erroneous basis that "the exchequer ..." was
" ... protected by the Statute of Limitations ..." and that the issue which required to be determined was whether or not the applicant's claim could be deemed to be " ... an exceptional one ...".I am satisfied on the evidence that the memorandum from Mr. Shelly to Mr. Cole dated the 11th April, 2000, had a determining influence upon the decision made by Mr. Cole. Paragraphs 5 and 6 of that memorandum are almost identical in terms. Each commences with a warning from the Attorney General of "... the potential large liability of this case which would be out of the Department's control if granted". Each concludes by drawing attention to advice from the Attorney General that "... that there is no obligation to grant an authorisation" and to the fact that "... should an authorisation be granted it may set a precedent ...". Mr. Cole's decision, on his own evidence, was to accept the recommendation contained in the final paragraph of Mr. Shelly's memorandum of the 11th April, 2000, by placing the letter X beside that paragraph. The precise terms of the decision were, Mr. Cole said, contained in the draft answer to the parliamentary question which had been prepared by Mr. Shelly before Mr. Cole saw any material in relation to the case and which had been attached to the memorandum. Since Mr. Cole accepted Mr. Shelly's recommendation and made his decision in the precise terms prepared earlier by Mr. Shelly,(and without informing himself adequately in-relation to the Statute), it is necessary to review the considerations which gave rise to Mr. Shelly's recommendation. As early as the 5th March, 1999, Mr. Shelly made the following precise recommendation to Mr. Cole's predecessor "... I would recommend that 1994 be accepted as the date which the applicant became aware that the injuries he was
suffering were due to the incident in 1980 and accordingly I believe the application meets the provision of the Statute of Limitations Act and I would recommend that the solicitor be informed that the claim is being accepted". The handwritten response on the 16th March, 1999, did not question the reasoning behind the recommendation but raised concerns about the scale of any award and the possibility of creating a precedent. An ex gratia payment was suggested.
Mr. Shelly's request that the Department of Finance should make such a payment was rejected inter alia on the grounds that "...the key considerations pertaining to the potential authorisation of the claim (i. e. the establishment of a precedent, creation of a large potential liability to the exchequer) would apply to an ex gratia payment also ... ... Regretfully .... this Department... ... in view of the enormous potential liability to the exchequer ... cannot agree to the making of payments in cases where the exchequer is protected by the Statute" It is quite clear from the subsequent documentation that, arising from this written response, Mr. Shelly thereafter accepted the view (a) that the Minister was "protected by the Statute" in respect of the applicant's claim and (b) that the "key considerations pertaining to the potential authorisation of the claim" were those outlined in the response. However that view was erroneous. In cross-examination Mr. Cole was asked for his interpretation of the advice from the Attorney General that "... there is no obligation on the Minister to grant an authorisation ...". He replied that he understood the advice to mean that the Minister was under no obligation whatsoever to extend the time limited by s.5 of the Act of 1941 in the manner sought by the applicant. He considered that it was entirely within the discretion of the Minister to grant the extension if the Minister deemed it appropriate to do so.required to exercise his discretion in the applicant's favour if he had no other valid reason for refusing the relief sought.
When he made his decision on the 11th April, 2000, Mr. Cole had before him material which would have helped him to decide when the applicant first became aware that he had sustained a significant injury and whether that injury was attributable in whole or in part to the events of the 30th October, 1980. However that was not amongst the questions which Mr. Cole was then addressing of the issues which he was then seeking to determine. Mr. Cole believed that the Minister was "protected by the Statute" in respect of the applicant's claim but could exercise an absolute discretion to treat the claim as exceptional. The decision. made by Mr. Cole on behalf of the Minister was accordingly made by way of an inappropriate and erroneous consideration of material in purported exercise of a discretion which was misunderstood by the decision-maker. It must, accordingly, be treated as irrational and quashed. Since it remains within the discretion of the Minister it will be remitted to him for reconsideration.