High Court 

Donovan v Minister For Justice

1996/288 7R 

2 April 1998 

GEOGHEGAN J: 

The Applicant is a sergeant in the Garda Siochana who applied to the Respondent for compensation under the provisions of the Garda Siochana (Compensation) Acts, 1941 and 1945. The Respondent refused to authorise the Applicant to apply to the High Court under the Acts on the grounds that there was nothing to indicate that the injuries sustained by the Applicant were "maliciously inflicted". 

In this Judicial Review proceeding the Applicant seeks to have the Minister's decision quashed both on the grounds that the Minister is not concerned with the "malice" issue and on grounds of unfair procedures. The form of application to the Minister is dated the 17 December, 1992 and was transmitted to the Minister enclosed in a letter to the Secretary of the Department of Justice dated the 19 December, 1992. The Applicant suffered a back injury and it is not in dispute that the injuries sustained could not be described as "minor". 

The form of the application for compensation contained the following entry after the printed words "the duty (if any) on which the Applicant was engaged when the injuries were inflicted":- 

"seeking to arrest suspects involved in a burglary." 

After the printed words "the place at which and the circumstances in which the injuries were inflicted "there was inserted the following:- 

"The Applicant was in the process of searching for individuals who had broken into a shop premises at Connolly Street, Midleton, Co Cork and the Applicant was searching Dickenson's Lane and was standing on a wall. The Applicant heard a person or persons approaching him and the Applicant's colleague shouted at the Applicant to look out and the Applicant feared imminent attack and assault and while attempting to avoid such an attack and assault which the Applicant perceived to be imminent, the Applicant fell off of the said wall and suffered the said injuries." 

The injuries were stated to have been inflicted on the 3 July, 1992 and the covering letter from the Applicant's Solicitor indicates that the Applicant did not realise that the injuries were as serious as they then appeared to be and therefore an extension of time was requested. 

It was also indicated that medical reports would follow. A decision by the Minister that she could not authorise the Applicant to apply to the High Court in accordance with the Acts on the grounds that the injuries sustained by the Applicant were not sustained within the meaning of Section 2(1)(c) of the 1941 Act, was communicated to Messrs Ernest J Cantillon & Co, Solicitors for the Applicant, by a letter of the 17 June, 1996, some three and a half years after the application was first made. This delay was quite inexcusable. I do not intend to refer to the intermediate correspondence in this judgment. It is sufficient to state that the Solicitors for the Applicant were continually protesting at the delay in processing the application and that the excuses given for the failure to do so were not acceptable and were wholly inadequate. Furthermore, I am satisfied that the Solicitors for the Applicant were left under the impression from the tone of the correspondence coming from the Department of Justice and quite reasonably left under the impression that the only issue which the Minister was considering was whether the injuries were of sufficient seriousness to permit her to authorise the application to the Court. No indication of any kind was given that the question of malice was under consideration. Of course it may well be that the Department has a system of looking at the injuries first. Certainly the file would seem to indicate that the officers of the Department never really addressed their minds to the malice question until they had sufficient information before them on the medical aspects. But the Applicant could not know this and Mr Cantillon's protests as contained in his letter of the 27 June, 1996 to the Department are wholly justified. In that letter he states as follows:- 

"We have reviewed this file and at no stage were we informed that there was any question of this case falling otherwise, than within the provisions of the 1941 Act. At all stages, our attentions were directed to forwarding medical reports to you. At no stage, were we informed that the Minister was considering refusing authorisation, because the injuries 'were not sustained within the meaning of Section 2(1)(c)'of the Act." 

The very next sentence in Mr Cantillon's letter is of considerable relevance as far as this case is concerned. He observed as follows:- 

"It seems therefore that it is wholly unfair to so conclude without giving an opportunity to make representations." 

He goes on to make other points that expand on his basic "natural justice" complaint. I agree with the views expressed by Mr Cantillon in that letter. I am satisfied that the Minister was not entitled to make a final decision that the application did not come within the Act without first indicating her views to the Solicitors for the Applicant and inviting further representation. Accordingly, I am of the view that the Applicant has established one of the two grounds on which Judicial Review is sought, that is to say the natural justice ground. But of course Certiorari being a discretionary remedy, I have to consider whether in all the circumstances I ought to quash the Minister's decision and I will be dealing with that question after I have considered the second and indeed main ground on which Judicial Review is sought, namely, that it is for the High Court and not for the Minister to consider the malice issue. There is no ambiguity in the Act on this point. It is perfectly clear from any reading of the Act that the Minister is not concerned in the ordinary way with the malice issue. Nor was it argued otherwise at the hearing. But what is being argued on behalf of the Minister is that if an applicant sends forward to the Department of Justice a case which quite clearly on its face does not come within the Act, the Minister cannot be bound to refer it to the High Court. I have no doubt that if an unstateable compensation claim is lodged with the Minister, the Minister is entitled to refuse to entertain it. Any other view would create an absurdity especially in the context that the Minister has to bear his or her own costs under the Act. In that limited sense, therefore, the Minister can be concerned with the issue of malice. If on the face of the application before the Minister the injuries were quite clearly not maliciously inflicted upon the member of the force, then the Minister is acting intra vires in rejecting the application. Put simply, the Minister is concerned with the question of whether there is a stateable case of malice but if there is a stateable case, the Minister is not concerned with the question of whether there was in fact malice. That question must be left to the High Court. It is necessary now to consider what is meant by the expression "personal injuries . . . maliciously inflicted. . . on a member of the Garda Siocharia". The expression "maliciously inflicted "can only mean deliberately or recklessly inflicted. Counsel for the Minister, Mr O'Hanlon, attaches some significance to the word "inflicted" and I agree with him. There must be some deliberate or reckless act done by the culprit which constituted a physical attack or at least a threat of a physical attack on the member of the force. It has been judicially stated that "malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act done intentionally, without just cause or excuse". (Bromage v Prosser (1825) 4 B & C 247). That definition was approved in the well-known case of Allen v Flood, [1989] AC 1. Counsel for the Applicant however argues that judicial definitions of malice in other statutes should not be resorted to in construing the Garda Siochana (Compensation) Act, 1941 and that a very broad interpretation should be given to the relevant statutory provisions in that Act with the effect, or certainly very nearly with the effect, that any guard who was injured in the course of apprehending crime is entitled to compensation under the Act. I cannot accept that argument. It would seem to me that if the Oireachtas intended that to be the case, the provisions would have been worded differently. A limiting meaning therefore must be given to the expression "maliciously inflicted". I find strong support for that view in the judgment of Davitt J in Conway v The Minister for Finance, [1953] IR 153. That was an application under the Garda Siochana (Compensation) Acts. Davitt J set out the facts as follows:- 

"On the night in question which was a very dark one, the applicant was in company with Guard Anthony McHale on night patrol duty near Quilty, Co Clare. On a stretch of the road between Cooraclare and Quilty which inclined upwards in the way they were walking they saw a light approaching which they took to be that of a bicycle. They heard voices as if in conversation. Coming to the conclusion that there was more than one cyclist, though only one light, Guard McHale, acting on Conway's instructions, went ahead of Conway some ten or fifteen yards. He became aware of two cyclists, one with a light and the other without. The cyclist without the light was four or five yards in advance of the other. Guard McHale twice shouted 'halt'. Neither cyclist made any attempt to stop and the one on the unlighted bicycle increased his speed as he passed McHale. Guard Conway had been walking towards the cyclists in a position close to the grass-margin on his left hand side. When he heard McHale shout and saw the lighted bicycle, he stepped further out towards the centre of the road and held up his hands. This brought him into a position in front of, and about five or seven yards from, the lighted bicycle. He was immediately struck by the unlighted bicycle which he had never seen. He was not carrying any light. He did not say he shouted or used his voice at any time, but Guard McHale said that before he heard the crash of the collision he heard Conway should 'halt'. Both guards were in uniform. Guard Conway was knocked down and sustained a dislocation of the right shoulder. The dislocation was reduced but complications ensued which led eventually to his retirement from the guards." 

At the bottom of p 155 of the report, Davitt J explains how he thinks the question of whether the injuries were maliciously inflicted or not should be approached. He said the following:- 

If the proper conclusion to come to is that these injuries were maliciously inflicted then it would seem clearly to follow that Clancy has been guilty of a serious offence under Section 20 of the Offences Against the Person Act, 1861, ie, the offence of unlawfully and maliciously causing grievous bodily harm. It can hardly be disputed that a dislocated shoulder seriously interferes with one's comfort. In this case it seriously interfered also with the health. That offence is one for which the statute provides a maximum sentence of penal servitude for five years. It is a serious crime. In this case it is clear that Conway's shoulder sustained a violent impact with Clancy or with the ground. If his head instead of his shoulder, had met with that impact it is possible that the injury might have been fatal. In those circumstances Clancy might be charged with manslaughter. The mere circumstance that Conway's shoulder, and not his head, met with the impact can hardly suffice to vary the principles which should be applied in deciding the question whether or not an intention to cause a substantial injury is to be imputed to Clancy. The principles to apply in the case of a charge of manslaughter were fully discussed in Dunleavy's case and the cases referred to in that report. It seems to me that considerable assistance is to be gained by applying them in this case. 

Where a person has been seriously injured in a collision on the highway and some other person is alleged to be criminally responsible by reason of a very high degree of negligence in the driving of a vehicle, it may not be the practice to lay the indictment under Section 20 of the Offences Against the Person Act, 1861 but rather under Section 35 which relates to injuries caused by wanton and furious driving. However that may be, and whichever may be the more appropriate section, a decision in favour of the applicant in this case will mean that I am satisfied that Clancy maliciously inflicted these injuries upon Guard Conway. This connotes an offence under Section 20 and the principles to apply are conditioned accordingly." 

In that case Davitt J went on to observe that he was not satisfied that Clancy was guilty of the offence of dangerous driving or that any intent to injure Conway could reasonably be imputed. (See page 158 of the report). While of course the facts are quite different in that case, they are not different in any relevant way. It is clear that Davitt J took the view, as I do also, that for injuries to be maliciously inflicted there must be an intention to inflict them on the guard or at least recklessness as to whether they would be inflicted or not. In this case there was no evidence before the Minister which indicated that the culprits of the crime had formed any intention of injuring the Applicant. This does not mean of course that the Applicant did not act reasonably in getting off the wall. He was perfectly entitled to fear that he would be attacked if he stayed there but the stage had not been reached where there was any actual threat of attack, or still less an actual attack, and in those circumstances the injuries to the Applicant cannot be said to have been maliciously inflicted. It would be stretching the meaning of the expression "maliciously inflicted beyond any normal understanding of that expression in law to hold that the injuries were maliciously inflicted in this case. There is no doubt of course that the culprits were running away to escape the other guard and they may or may not have seen the Applicant but irrespective of whether they saw the Applicant or not there is not the slightest evidence of any display of intention on their part to injure or attack the Applicant. 

Counsel for the Applicant, Mr Antoniotti, has referred me to a number of garda compensation cases in which he says that on the facts presented there was no deliberate intention to injure. He concedes, however, that there may well have been no issue raised about malice in any of these cases. Having read the summaries of facts in each of them it would seem to me that it is only the application of Sergeant Michael Kearns heard on the 20 July, 1992, which contains no element at all on the face of it of either deliberate intent or recklessness, unless of course there were special circumstances surrounding the affixing of the wire to the ground. The summary of the facts in that case is simply that while carrying out a search in a remote area, the Applicant tripped over some wire which was affixed to the ground. He fell heavily to the ground twisting his right knee. Unless there was some additional evidence, of which I am unaware, there is no doubt that that case would not come within the Act, if I am right in the view which I have taken of it. That is not so in relation to the other cases cited however. In each of those it would seem to me to have been open to have made a case of recklessness at least. If, for instance, a guard is injured while attempting to break up a fight between two people, any injury which the guard receives in the course of that exercise would certainly be maliciously inflicted within the meaning of the Act. Again, if there was a syringe and needle attached to a shirt and the culprit knew or ought to have known the guard could seriously injure himself by handling the shirt, there was at the very least the element of recklessness. If follows that only one of the cases put forward involves facts which do not contain any element of either deliberate intention or recklessness. 

On the view therefore that I have taken, the Applicant is prima facie entitled to an Order of Certiorari on the natural justice grounds but is not entitled to such an Order on the grounds of the Minister refusing to entertain the application because of there being no evidence of malice. It now remains for me to consider whether I should in fact make the Order of Certiorari, it being a discretionary remedy. For two quite distinct reasons I have come to the conclusion that I should not. 

First of all, I accept the well established principle that it is normally no answer to an application for Certiorari on natural justice grounds that the Applicant would have failed on the merits or on the law even if the rules of natural justice had been observed. The Courts have consistently held that a person is entitled to a fair hearing irrespective of merits. But there is a peculiar feature of this case which leads me to derogate from that principle. After the decision of the Minister had been communicated to Messrs Ernest J Cantillon & Co, Solicitors, by the letter from Mr Shelly of the 17 June, 1996, Mr Cantillon wrote the following letter dated 27 June, 1996 to the Department of Justice. I think it appropriate to quote it in full:- 
	
"Re:	Garda Siochana Compensation Acts, 1941-1945	
Applicant:	Sergeant Sean G Donovan	

Dear Sir, 

Your letter of the 17th inst refers, a copy of which we are sending on today's date to our client for instruction. We have reviewed this file, and at no stage were we informed that there was any question of this case falling otherwise, than within the provisions of the 1941 Act. At all stages, our attentions were directed to forwarding medical reports to you. At no stage, were we informed that the Minister was considering refusing authorisation, because the injuries 'were not sustained within the meaning of Section 2(1)(c)'of the Act. 

It seems therefore that it is wholly unfair to so conclude without giving an opportunity to make representations. 

Further, we do not know what the content of the report from the Garda Commissioner is, let alone the basis upon which the Minister thereafter decided to refuse authorisation. 

In the circumstances we must ask you to reconsider the position and in addition, furnish us with the Commissioner's report, or such relevant extracts as are appropriate, to enable us understand the basis upon which the Minister came to the conclusion that she did. Further, will you set out the basis upon which it is contended that the injuries sustained by Sergeant Donovan 'were not sustained within the meaning of Section 2(1)(c)'of the Act. 

We await hearing. 

Yours faithfully, 

Ernest J Cantillon." 

That letter elicited a reply from the Department of Justice dated 1 July, 1996 which read as follows:- 

A CHARA 

Garda Siochana (Compensation) Acts, 1941 and 1945 

Sergeant G Donovan 

I am directed by the Minister for Justice to refer to your correspondence of the 27 June, 1996 concerning the above. 

Section 2(1)(c) of the 1941 Act states that the Act applies to personal injuries . . . 'maliciously inflicted after the passing of this Act on a member of the Garda Siochana . . .' 

It is clear from statements received that Sergeant Donovan's injuries were not caused maliciously. In his statement of the 11 March, 1993, Sergeant Donovan states 'in getting down off the wall I fell and hurt my back'. 

The Commissioner's report also indicates that no criminal charges were preferred against any person for the injury sustained by Sergeant Donovan. I trust this clarifies the position. 

Catherine Boylan 

Garda C&A Division." 

On receipt of that letter, Mr Cantillon wrote a further detailed letter of the 5 July, 1996 in which he fully set out what his client's case was and it is exactly the kind of letter which would have been written to the Minister had the Minister sought observations from Mr Cantillon before making a proposed decision to the effect that the application did not lie. Mr Cantillon's letter read as follows:- 

"Re: Garda Siochana Compensation Acts, 1941/1945 

Sergeant Sean G Donovan 

Dear Sir, 

Your letter of the 1st inst refers. 

We are aware of the provisions of Section 2(1)(c) of the 1941 Act, and with respect we believe that Sergeant Donovan's application falls within the terms of the legislation. 

You have quoted from Sergeant Donovan's statement of the 11 March, 1993, a particular sentence but you have omitted to quote or refer to the reasons for Sergeant Donovan 'getting down off the wall' which are elaborated upon in the statement, in particular in which he states 'Garda O'Sullivan shouted a warning to me, telling me to look out. I realised that the persons there would have been aware of my presence, and position. I also realised that I was silhouetted on top of the wall with street lighting at my back. Fearing imminent attack, I drew my baton, and also fearing being struck by a stone, or other missile fired at me, I got down off the wall to face my adversaries'. 

It is in those circumstances that Sergeant Donovan got off the wall. While attempting to avoid such an attack and assault, which Sergeant Donovan perceived to be imminent, he sustained the injuries. 

You again referred to the Commissioner's report, but we have not seen the report. We are aware that no criminal charges were preferred for the injuries sustained, and that is a fact, but that cannot be a basis for deciding whether or not Sergeant Donovan comes within the terms of the legislation. 

In the circumstances we would ask you to review the matter and let us have your observations. 

Sergeant Donovan is in a position, as he has set out I believe in the application form, to swear that he fell off the wall, by reason of the fact that he feared that an individual who had broken into the shop was approaching/attacking him, and that it was necessary for him to move quickly so as to avoid attack and injury. The fact that Sergeant Donovan's colleague, Garda O'Sullivan shouted 'Sean, look out. . . get in here fast' is a further factor which establishes that this was the case. 

Clearly, Sergeant Donovan sustained the injuries in an attempt to prevent an attack on his person. 

As you have quoted selectively, (and we don't mean this in a critical fashion) from Sergeant Donovan's report, we have now, hopefully by this letter, put the matter in context. We are slightly concerned that you may be misconstruing matters in other reports. For that reason, we have to ask you to set out the basis upon which the Minister declined to give consent, so that we can have an opportunity to correct any errors that may be in the submissions that have been made to the Minister which caused her to decline consent in this matter. 

In addition, would the Minister please review the matter in the light of this further submission, and any other submission that we may make in the light of the documentation which, hopefully you will furnish to us. 

We await hearing. 

Yours faithfully, 

Ernest J Cantillon". 

The final letter was then written by the Department to Messrs Cantillon dated the 16 July, 1996. That letter reads as follows:- 

"A Chara, 

Garda Siochana (Compensation) Acts, 1941 and 1945 

Sergeant Sean G Donovan 

I am directed by the Minister for Justice to refer to your correspondence of the 5 July, 1996 concerning the above. 

Section 2(1)(c) of the Garda Siochana (Compensation) Act, 1941 clearly states that said Act applies to personal injuries. . .'maliciously inflicted after the passing of this Act on a member of the Garda Siochana . . .' 

As indicated, the Minister is not satisfied that Sergeant Donovan's injuries fall within the remit of the above Acts. 

The Commissioner's reports on these cases are for the Minister's information only and I regret that I am not in a position to give you a copy of the correspondence between the Commissioner and the Minister in this case. 

I hope this clarifies the position. 

Mise le meas, 

Catherine Boylan. 

Garda C&A Division." 

Without making any comment on the section of the letter which pleads confidentiality in relation to the Commissioner's reports, I absolutely agree with the rest of the letter and like the Minister and the Department I take the view that Mr Cantillon's letter of the 5 July, 1996 does not set forth a stateable claim under the Garda Compensation Acts because nothing he says indicates that there was in fact a formed deliberate intention to injure the Applicant nor was there any evidence of some reckless act towards the Applicant. Having regard, therefore, to the post decision correspondence between the parties I think that this is a case for departing from the general rule and refusing Certiorari. 

My second and quite different reason for refusing the Order of Certiorari as a matter of discretion is a practical one. If I grant an Order of Certiorari on the natural justice grounds, the Minister will then have to reconsider the application but having regard to the views I have expressed, it would seem quite likely that the Minister would again take the view that the application did not come within the Act even on an arguable basis. That new decision of the Minister could only be challenged by a fresh judicial review proceeding which might not come on for hearing for a considerable time and would then of course be subject anyway to a further appeal to the Supreme Court. If, on the other hand, I refuse to make the Order of Certiorari, all relevant matters can be finally determined on an appeal from this decision if the Applicant is aggrieved by it and sees fit to appeal. 

For both of these reasons, therefore, I refuse the relief sought.