McCormack v Minister for Public Expenditure and Reform [2019] IEHC 906 (09 December 2019)
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[2019] IEHC 906
THE HIGH COURT
IN THE MATTER OF AN GARDA SÍOCHÁNA (COMPENSATION) ACTS, 1941 AND 1945
[2018 No. 368 SP]
BETWEEN
NIALL MCCORMACK
APPLICANT
AND
MINISTER FOR PUBLIC EXPENDITURE AND REFORM
RESPONDENT
JUDGMENT of Mr. Justice Twomey delivered on the 9th day of December, 2019
BACKGROUND
1. On 17th October, 2013 the applicant, Garda McCormack, sustained a fracture to his
dominant right wrist and cuts to his lips during an arrest of an intoxicated suspect. During
the struggle to arrest the suspect, the suspect fell on top of Garda McCormack’s right
wrist.
2. Garda McCormack attended the Emergency Department following the incident where the
cuts to his upper and lower lips were cleaned and they healed shortly thereafter. An x-ray
was taken of his right wrist. This x-ray revealed an undisplaced transverse fracture to his
right ulnar styloid bone. A partial plaster cast was applied to the right wrist and Garda
McCormack was referred for follow-up at a specialist orthopaedic outpatient clinic. He was
given a tetanus injection and he was advised to treat his pain with over-the-counter
painkillers.
3. Garda McCormack attended at this orthopaedic outpatient clinic on 24th October, 2013
and the plaster cast was removed and a splint applied to his right wrist and forearm. He
was reviewed at this clinic on the 21st November, 2013 and the splint to his right arm
was removed. At subsequent review at the clinic almost one year later, on 6th November,
2014, it was noted that x-rays taken of the right wrist showed that the fracture had
healed and Garda McCormack was referred for an MRI scan of the wrist to confirm this
prognosis. Garda McCormack attended one session of physiotherapy to aid recovery of his
injured right wrist. He was on sick leave for a period of 9 weeks following the incident and
he reported ongoing weakness in his wrist in the year after the incident. Garda
McCormack was subsequently referred to a Consultant Orthopaedic Surgeon and attended
for appointment on 14th January, 2017 but received no treatment from this Consultant
and the medical reports advise that Garda McCormack fully recovered from his injury with
no long-term sequelae.
4. This Court will award special damages in respect of medical expenses of €394.05 as these
have been agreed between the parties.
CALCULATION OF GENERAL DAMAGES/COMPENSATION
5. As regards how a court calculates how much compensation should be paid for this
fracture to Garda McCormack’s wrist, 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
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about assessing general damages (i.e. for pain and suffering) and special damages (i.e.
for out of pocket expenses).
6. In O’Connell v. Martin, this Court referenced the need for solicitors, barristers and doctors
to be alive to the possibility that their professional services might be used to facilitate
fraudulent claims. In Daly v. HSE [2014] IEHC 560, Noonan J. made similar comments at
para. 43:
“All lawyers, and particularly those involved in personal injuries litigation on a regular
basis, are perfectly well aware of the potential risks for their clients of mounting
exaggerated claims and the draconian sanctions available to the court under s. 26
of the Civil Liability and Courts Act 2004. Accordingly, it behoves them to exercise
considerable care in the analysis of claims for special damage before advancing
them.”
7. It is however crucial to realise, although not expressly stated by Noonan J. in Daly v. HSE
or by this Court in O’Connell v. Martin, that it goes without saying that, in any comment
about lawyers exercising care in presenting claims, that the lawyer cannot be criticised
simply because the claim turns out to be fraudulent or exaggerated.
8. Lest there be any doubt therefore, it should be noted that the solicitor and counsel
involved in the O’Connell v. Martin case were not criticised by this Court in any way for
how they represented their clients. This is because they both have a duty to act on the
instructions of their clients. The truth or otherwise of those claims is a matter for the
Court and not the lawyers.
9. 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 damages in
personal injury cases are the principles of the Court of Appeal and the Supreme Court. It
is clear that these principles are equally applicable to the assessment of compensation
under the Garda Compensation Acts (per Irvine J. in Carey & Or. v. Minister for Finance
[2010] IEHC 247 at para. 4.24 et seq.). Accordingly, the following non-exhaustive
principles set down by the Court of Appeal and Supreme Court bind this Court in the
assessment of damages for Garda McCormack in this case.
(i) The damages awarded must be fair to the plaintiff/applicant and
defendant/respondent:
-
(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:
-
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-
The Supreme Court does not normally deal with modest damages (for minor
injuries) or moderate damages (for middling injuries), whether on the District
Court scale (0 to €15,000), the Circuit Court scale (up to €60,000) or
otherwise. For this reason, although not a personal injuries case, the
Supreme Court decision in Simpson v. Governor of Mountjoy Prison
[2019] IESC 81 is of relevance, since it is one of the few cases handed down by the
Supreme Court which considered the appropriate amount of compensation for
a person who cannot be said to have ‘sustained significant injuries’ (at para.
118). In doing so, the Supreme Court applied, inter alia, the same
restitutionary principles, of seeking to put a claimant in the same position as
before the incident, as apply in personal injury cases. On this basis, the
Supreme Court determined that the sum of €7,500 was appropriate
compensation for a prisoner who was forced to slop out for seven and a half
months. MacMenamin J. described the sum of €7,500 as ‘moderate
compensatory damages’ for a prisoner who felt ‘deeply humiliated, alienated
from support and denigrated’ as a result of his exposure to conditions which
were ‘distressing, humiliating, and fell far below acceptable standards’ (at
para. 116 et seq.),
(iii) Damages awarded should be proportionate to the cap (‘in or around €450,000’ per
Irvine J. in Nolan v. Wirenski) 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 compensation for Garda McCormack
10. 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 McCormack’s injuries.
CONCLUSION
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11. As general damages/compensation, for the cuts to his lips but primarily for the fracture
sustained to Garda McCormack’s dominant right wrist which required treatment with a
plaster cast and splint for approximately 6 weeks and one session of physio and which led
to nine weeks of sick leave but which has fully healed, this Court concludes as follows: in
light of the foregoing Court of Appeal and Supreme Court principles for assessing
damages, and in particular the Supreme Court decisions regarding the relevance of the
average income after tax in this country (circa €35,000) and the recent Supreme Court
award of €7,500 as moderate compensatory damages in the Simpson case, the
appropriate level of the award in this case should be €20,000.
Result: Applicant awarded special damages and general damages.
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