High Court allows future pension and medical claims while rejecting age 70 earnings claim.

[2018] IEHC 435

THE HIGH COURT

[2010 No. 856 S.P.]

BETWEEN:

AIDEN FLANAGAN

APPLICANT

AND

THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM

RESPONDANT

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 18th day of July 2018

1. This judgement should be read in conjunction with the principle judgement of the Court delivered on 23rd March, 2018, on foot of

which the case was adjourned sine die to enable the parties ascertain and make the consequential adjustments to the amounts

claimed which arise as a result of the conclusions reached, if necessary, by calling further actuarial evidence. The parties were also

afforded the opportunity to make further submissions on the matters arising and on the terms of the final order to be made.

2. Following the adjournment, the parties entered into correspondence with a view to identifying and, if possible, reaching agreement

on the amounts and heads of the claim for past and future pecuniary loss attributable to the injuries caused by the assault. This

exercise resulted in a measure of agreement. In relation to the outstanding matters the parties prepared position papers which were

presented to the Court when the case resumed to entertain further submissions.

3. It is not intended to summarise the position papers or the submissions here, suffice to say that the matters on which no agreement

could be reached are as follows:

(i) Past Pecuniary Loss – Under this head of loss agreement was reached on past loss of earnings, however, differences

remain in relation to the claim in respect of past medical and travel expenses; the Respondent is prepared to agree a total

of €103,325 whereas the Applicant’s claim is for €108,129.52. The Court will decide that issue in due course.

(ii) Courts Act Interest – While the total amount in respect of past loss of earnings to April, 2018 was agreed at €154,600

it was not possible to calculate the amount of interest until the amount to be allowed for past medical and travel

expenses at (i) above is crystallised by the decision of the Court.

(iii) Claim for Future Loss of Earnings/Pension Benefit – The Applicant claims a pension lump sum loss of €46,970 and a loss

of future weekly pension of €222,000. The Respondent submits that these claims were not allowed by the Court and are

thus non-recoverable, this notwithstanding the finding that the applications to retire on health grounds would not have

been made but for the injuries caused by the assault. In passing it should be noted that the Court was aware the

Applicant would receive a lump sum payment and a pension on reaching 60, calculated on his years of service, payments

not to be confused with the loss in the value in those benefits arising from a cessation of employment at the conclusion

of the case, an event which has now taken place.

(iv) Reddy v. Bates Contingencies; Discount Rate – The Respondent submits that in arriving at a discount figure of 15%

for Reddy v. Bates contingencies the Court had adopted a holistic approach when dealing with the claim for loss of future

earnings arising from employment to age 60 as a Garda and the likely earnings to be derived from self or paid employment

in the future. Accordingly, the rate of 15% applied across the board; the Applicant was not entitled to the benefit which

would inure from applying a 30% discount to the likely non-Garda income amount when that was being taken into account

in assessing the net value of the loss.

(v) Future Medical Expenses – The Respondent submitted that this head of loss amounting to €249,611 would be met by

the St. Paul Garda Medical Aid Scheme which is provided to members of the service, including retired officers, by the

international insurer St. Paul. The Applicant had had his expenses to date paid under the scheme. The Respondent

proposes the sum of €57,666 to meet this head of loss on the basis that all future claims made in respect of medical and

travelling expenses arising as a result of the injuries will be covered in full under the scheme, as they had been in the

past. Accordingly, the sum proposed was the true value of the future loss under this head. The proposed amount is the

capital value of future membership premiums for the remainder of the Applicant’s life. It was submitted that payment of

this amount would enable the Applicant to mitigate his loss without expense.

Preliminary Rulings

4. I have read and considered the position papers and the submissions made on behalf of the parties. It is abundantly clear from the

judgment that other than the sum of €45,000 for enhanced general compensation in respect of diminution/loss of opportunity, a head

of claim and amount about which there can be no issue, no other amount in respect of any other head of pecuniary loss is identified.

The reason for this is explained by the necessity of having to ascertain the amounts which maybe recovered having regard to the

conclusions reached by the Court and to be included in the final order.

5. Apart from the claim in respect of past and future medical and travel expenses the Applicant made a claim for past and future loss

of earnings and pecuniary benefits to be derived from his employment in An Garda Síochána and from employment after retirement.

That claim included a sum for loss in the value of his weekly pension from age 60 and a loss in the amount of the gratuity receivable

on retirement at that age calculated on the premise that the Applicant was unable to work as a Garda and would retire from the

police service for that reason at the conclusion of the case, a decision in which, as is manifest from the principle judgment, he was

wholly supported by the physicians whom he attended over a long number of years. Actuarial computations in relation to the capital

value of this head of loss were carried out by the consulting actuaries and set out in the reports made available to the Court.

6. So far as the discount rate for Reddy v. Bates contingencies is concerned, it is clear on the face of the judgment, indeed the Court

specifically noted the fact, that there was no issue in relation to the application of a discount for contingencies in relation to the

arterialised claim for loss of earning after retirement from the service. However, it is also manifest that there was an issue, which

required a decision, about the applicability and extent, if any, of the discount to be applied to the claim for loss of earnings as a

Garda to age 60; the Court decided to apply a rate of 15%.

7. It would be wholly wrong to infer from the judgment that silence in relation to a matter upon which there was no issue explained or

was indicative of the approach which the Court had taken to the application of the contingencies discount in respect of future loss of

earnings, particularly the suggestion that the rate of 15 % was compromise figure intended to apply to all income from whatever

employment. The Applicant accepted that whatever the outcome on the issue in relation to the discount, if any, to be applied to the

loss of future earnings as a Garda to age 60, a discount at a higher percentage would have to be applied to the claim in respect of

post retirement income, and so it does.

8. It is significant in the context of the issues which have arisen that in its consideration of the pecuniary loss claims the Court

identified the claims for loss of earning as well as pension benefits into the future and noted that by the conclusion of the hearing the

actuaries “…had reached agreement in respect of all matters except the multiplier”. That a loss in respect of the amount of the lump

sum and weekly pension payment would arise in the event that the Applicant ceased to be a member of An Garda Síochána did not

feature as a significant issue during the evidence or in the written submissions made at the end of the hearing. That this was so is

not all surprising given the case advanced on behalf of the Respondent since if that case had been accepted by the Court the

Applicant would have lost the causation issue and the basis for this head of claim, instead of which he succeeded.

9. It is also apparent on the face of the judgment that with the exception of an express finding in relation to the issue of retirement

age and the appropriate multiplier specific heads of past and future pecuniary losses are not individually identified, on the contrary, all

of the Applicants pecuniary loss claims both to date and into the future have been allowed except in respect of such amounts

claimed, if any, which were or may in future be attributable to injuries or conditions other than those found to have been caused by

the assault.

10. Specific reference to the Applicant’s claim for loss of earnings to age 60 was required in light of the Court’s decision to reject that

claim and to make a finding instead that retirement would most likely have occurred at the age of 55 and because it was also

necessary to make a specific finding in relation to the appropriate multiplier. Similarly, the Court rejected an arterialised claim for loss

of earnings to age 70 making instead an award of enhanced general compensation for diminution/loss of opportunity.

11. Had it been intended to reject any other head of fiscal loss such as the claim for lump sum and weekly pension loss it would have

been necessary to say so particularly in light of the exercise upon which the parties have embarked at the invitation of the Court and

necessitated by its findings.

12. With regard to the issue which has arisen in relation to the claim for future medical and travelling expenses and whether this

should be met by the payment of the capital value of future premiums to St. Pauls Garda Medical Aid Scheme, the Court has already

made a specific finding in that regard which, absent any agreement between the parties, cannot be disturbed. Suffice it to say that

even if the Applicant was entitled and decided to remain in the scheme by paying the annual premiums he cannot be compelled or

required to do so simply because this would likely result in relieving the Respondent from having to meet some or all of the pecuniary

losses which the Court has allowed and for which it is responsible under the terms of the Garda Síochána (Compensation) Acts 1941-

1945.

13. Whether or not these expenses would in future be met in full, a fact about which there is some considerable doubt, I am satisfied

and the Court finds that any benefits obtained or as may be obtained under the scheme are not deductible at common law. See

Bradburn v. Great Western Railway Company [1874] LR 10 Ex. 1 and Parry v. Cleaver [1970] AC 1 at 14. The ratio decidendi in these

authorities is succinctly encapsulated in s. 2 of the Civil Liability (Amendment) Act 1964. See also Green v. Hughes Haulage Ltd

[1997] 3 IR 109; Hogan v. Steele & Co. Ltd [2000] 1 ILRM 330 and Monaghan v. Dunnes Stores [2013] IEHC 79.

14. It follows that the Applicant’s claim for the cost of his future medical and travel expenses may be recovered without reference to

the medical aid scheme. Whether or not he wishes to remain in the scheme and pay the premiums out of his own recourses is entirely

a matter for him. He is also entitled to recover his claim for the lump sum and loss of weekly pension arising from his

retirement/resignation an event which, lest there be any doubt about it, would not have arisen but for the injuries sustained as a

result of the assault. The net amount of this loss will have to adjusted to reflect the discount for Reddy and Bates contingencies at

15% and retirement at age 55 instead of 60.

15. The Court will adjourn the case further to permit implementation of its rulings before making a final order.