I rise to say that we, on this side of the House, will give our wholehearted support to this Bill. I say that, however, subject to the reservation that there are certain aspects of the Bill which we think should be considered now. Whilst we appreciate that the Minister is moved, in introducing this Bill, by a spirit of generosity towards the dependents of the murdered members of the Gárda Síochána, yet we have certain doubts that, under this Bill, the troubles which have arisen in the court in regard to these cases will be cured entirely. Now, the 1941 Act was made retrospective as far as the 1st January, 1940. It did not extend back to those cases which had occurred before the 1st January, 1940. I understood the Minister to say that no claims were received on behalf of the dependents of those people, and that it was difficult to prove dependency, but I want to put this to the Minister: that here were ten members of the Gárda Síochána murdered before the passing of the 1941 Act, and that in only one of those cases was it possible for the court to make an award. That was the case of Sergeant Griffin, who was murdered at Carrick-on-Suir in 1934. The dependents of his colleague on that occasion, Gárda Murrin, were, for some unknown reason, not given any award. I cannot say if there was an application to the court under the old Act for compensation, but no ex gratia grant by the State was made to the relatives of Gárda Murrin.
The other cases, which I shall briefly recite, cover the period from 1922 to 1932. You have the case of Gárda Phelan, who was murdered at Mullina-hone, in the execution of his duty on 14th November, 1922. There was no award given by the court in his case, nor was there an ex gratia grant from the State. In 1923, Sergeant Woods was murdered at Scartaglen, County Kerry, in which case there was an ex gratia payment of £80. There is also the case of Gárda O'Halloran, who was murdered at Baltinglass, County Wick-low, in whose case there was no court award nor any ex gratia payment made by the State. Then there was the case of Gárda Dowling, who was killed on 28th December, 1925, in whose case there was an ex gratia grant of £100. There is also the case of Sergeant Fitzsimons, who was murdered in Cork on 14th November, 1926, and his dependents got an ex gratia grant of £50. Gárda Ward was murdered on the same date, and his dependents got an ex gratia grant of £80. Detective Gárda T. O'Sullivan was murdered in Clare on 17th June, 1929, and, as a result of long correspondence in his case, his dependents were awarded an ex gratia grant of £500. That was the case where this unfortunate man was blown up by a trap-mine. Detective Gárda P. McGeehan was murdered on 14th July, 1932. That was in connection with the murder of the late Mr. Reynolds, a Deputy of this House, and no award was made in this case either by the courts or by the State.
When you review those awards, the amount appears to be very niggardly. The total sum amounts to £1,410, and I would ask the Minister seriously to consider, even now, making this Bill retrospective so as to include the dependents of those former members of the Gárda Síochána. May I put it to the Minister, and to the House, that those were the men who, largely, were the pioneers of the Gárda Síochána? They were the men who established the heroic tradition of the Gárda Síochána, a tradition which has received the praise both of the Taoiseach and of the Minister in this House on a recent occasion. I do not want to labour the point. The Latin poet, Horace, told us that it is sweet and honourable to die for Fatherland, and the nations of the world, through the centuries from his time, have advocated that fine principle to their peoples. None of the heroes who have died, either in the Gárda Síochána or elsewhere, to establish a noble or heroic tradition, has ever come back to tell us whether it was sweet or bitter to die for Fatherland. We do know from these cases, and from the cases which came to the courts under the 1941 Act, that the burden left to the dependents of these men is anything but sweet.
I think it is the duty of this House to repair the injustice done to the dependents of these men who were murdered before the passing of the Act, and who did not come within the provisions of it. It would be some consolation to these dependents to know that, even now, the State at this belated hour had recognised their services and granted some recognition of their valour. It would be some easement to the dependents of some of these men to know that even now they would be required for the loss of members of their families. I do not think the amount involved would be very large. I believe that a number of the parents, and probably other members of their families, have departed, and that there may not be any occasion to make an award at all, but I feel that the House, at least, should accept the principle and recognise the valour of these men. I may be told that this is a legacy from a former Administration, which should not be handed on now, and that the matter was not raised before. I put it to the Minister that it might not have been politic in the early-days of the Gárdaí to bring such a measure as this before the House, but in the changed atmosphere in which we find ourselves now, I think we should repair this injustice; certainly we should not perpetuate it.
I remind the House that if this matter was overlooked in the early days of the State, it was, probably, due to the fact that the State was then in its formative period; groping its way towards established conditions, and that there was not time to deal with it. I am sure it was never intended to overlook these people. Now that we have the opportunity under this Bill, I ask the House seriously to consider the position, and I ask the Minister to consider putting down Ministerial amendments to bring these cases within the scope of this Bill. It would be a matter of a few paltry thousand pounds at the very outside, and it will not only alleviate the pain and suffering of these people's relatives who are still alive, but it will give them some consolation. It will also give a certain degree of consolation to the older members of the Gárda Síochána who feel very keenly on these matters. I cannot say why this question has not been noticed before. The Minister will, probably, be able to explain that at a later stage. whatever the reason may be, I ask him, in all seriousness, to include these cases now. It may seem extraordinary to the Housé that the dependents of these men were not provided for earlier, but at that time we were working under Section 106 of the old Grand Jury Act of 1836. That Act enabled awards to be made only in cases where men were actually killed or murdered because of their past exertions to bring criminals to justice. In other words, if the act of murder were not committed because of "past exertions" then they would not come within the scope of the Act at all. For example, if a Gárda met a man and suddenly decided to arrest him, if that man there and then pulled a gun on him, the Gárda would be outside the terms of the Act. That was the position. There was also the difficulty of proving dependency.
In 1919 the British Parliament passed an Act amending the Act of 1836, and extended the scope of compensation so widely that almost unlimited discretion was given to the courts to award compensation according to the circumstances of the case. There was the case of O'Connell v. Tipperary County Council which ultimately settled the law. Such compensation meant a full compensation, which would include general damages to cover not only financial loss but also pain and suffering, loss of consortium and solatium for injured feelings. As a result of that Act, and the fight against the British Government here, several applications were made by the dependents of the Royal Irish Constabulary who were "murdered" or killed during that period, and most extraordinary awards were made, being as high as £17,000 and £18,000 in an individual case. I merely mention that to contrast the treatment meted out to those men and to the dependents of the Gárda Síochána. Of course, the awards at that time were not contested by the county councils and, as a result, they were probably far more excessive than would have been the case. Nevertheless, it was laid down as settled law that the courts were entitled to give full compensation to cover pain and suffering and to take into account the loss of a husband or father.
The 1919 Act was repealed in due course. We reverted to the old Grand Jury Act until the Act of 1941 was passed and the intention undoubtedly under that Act was that something in the nature of full compensation would be awarded. But, because of the provisions of the Act, the courts found themselves unable to grant a full and adequate compensation. They interpreted the Act on the basis of the precedent established under Lord Camp-bell's Act—the Fatal Accident Act— which deals with ordinary cases of accidents in the course of every-day life. The result was that dependents of the Gárda found themselves in this position, that their claims were calculated on a purely actuarial basis, on a plus or minus basis, cold arithmetic, which did not take into consideration any of these other matters which I suggest to the House should be considered in cases of this kind. The culmination was reached in the case of the late Detective-Sergeant O'Brien, who was murdered recently. He was a very distinguished, efficient and able member of the Special Branch of the Gárda Síochána, a man who had very high prospects in the service. Yet, when his case came before the courts, the judges found themselves, much as they would like to do so, unable to go outside the actuarial basis. In that case, the result was that a sum of £1,330 was awarded to the widow, £144 to a daughter of 15 years, and £180 to a daughter of 14 years, a total of £1,654. If Sergeant O'Brien had been injured in a road accident, his widow and children would have been awarded, at least, three times that amount. The O'Brien case was brought to the Supreme Court and that court held with the High Court.
Three questions were put in that case and I should like to bring them to the notice of the House. One was: "Whether the court should take into consideration the value of the financial benefits, other than those specified in Section 10 (3) of the Act, actually received by the applicants or to which the applicants became entitled under the will of the deceased or as next-of-kin or otherwise by reason of his death; if so, whether the court should deduct the full amount of such benefits from the amount which would be otherwise awarded to the applicants". The answer to that question was "Yes." The second question was: "Whether compensation under the Act should be measured by relation to the pecuniary loss suffered by the applicants or should represent full compensation to the applicants, in the case of the widow for the loss of her husband; in the case of the children, for the loss of their father and, in the case of both, for the break-up of the home and the loss of parental guidance, help and other advantages." The answer to that question was: "The court should make such deductions from the amount as it considers just and reasonable." In other words, it should take advantage of any financial advantages accruing and deduct them from the amount of the award made. The third question was: "Whether a sum can be allowed for general damages." The answer to that was an emphatic "No."
In this Bill, there is a provision which relates to Section 2 (2) (a) (iii). Again, in awarding damages, the court may take into consideration "the financial advantages which the applicant might reasonably have expected to receive in the future from the deceased if deceased had not died at the time at which he did die." That provision has been interpreted by the court on this actuarial basis on precedents established under Lord Camp-bell's Act and not in the light which was intended. I believe that it was intended that the court should take into consideration the financial prospects of the deceased by way of promotion and otherwise. It is not at all clear, to my mind, that the courts are doing that. I am afraid that an ungenerous interpretation is being given to those provisions. While the Minister is opening the door to a wider interpretation, I am not at all sure that, coupling Section 2 (2) (a) (iii) with Section 2 (1), we shall not find ourselves again in some plus and minus arrangement by which dependents will be deprived of that generous award which it is, I am sure, the wish of the House they should receive.
We can raise questions as to the form of the drafting on Committee Stage, but I suggest that the phrase in Section 2 (2) (a) (i) that the court "shall not take into account any property (including assets of the deceased) to which the applicant has become entitled by reason of the death of the deceased", may require a certain amount of elucidation. I propose to raise that on the Committee Stage. On this question of loss, under Section 2 (2) (a) (iv), the court is entitled to take into consideration "any loss (other than financial loss) sustained by the applicant". I am not so sure that we are quite safe in that provision. I am not satisfied that, if that provision stands, the Minister will not have to come to this House again and ask for a further amendment of the law to ensure that these men are treated generously. I suggest that, after "loss", you should add "or damage". Then the court will be in a position to award generous compensation based on general damages. No financial award will compensate for the loss of a father or husband, but it is the duty of the State to ensure that, so far as possible, the courts will be in a position to treat generously, and more than generously, men who give their lives for its safety and security. Accordingly, I ask the Minister to broaden those provisions, so that the courts will be able to make their awards on the basis of general damages.
I should like to mention a case that is sub judice. I do not want to go into the facts. I thought that the Minister would have mentioned it. The applicant in that case is Mrs. Harrington, widow of a Guard who was murdered recently at Nenagh. This case was at hearing and the judge found himself in a difficulty as to making any award and in interpreting the Act of 1941. He adjourned the case for the purpose of enabling this House to consider the matter. On this point I want to direct that Minister's attention to Section 2 (1), paragraph (a) (i) of the 1941 Act. It reads as follows:—
"(1) This Act applies—
(a) to the death of a member of the Gárda Síochana who dies at the date of the passing of this Act from injuries maliciously inflicted (whether before or after such passing on him)—
(i) in the performance of his duties as such member while actually on duty, or..."
The difficulty there is that you have to prove that the death occurred "in the performance of his duties... while actually on duty." That puts the onus on the dependent of the deceased member to prove that at the actual time of death the man was on duty. Now I put it this way: A man may be engaged on office duty and he may have occasion to leave his office. Is it seriously suggested that because he leaves his office for a moment during the day he ceases to be on duty? That is what you are getting at in that provision. Now, in this case two members of the Gárda met and unfortunately had an argument which resulted in the deaths of both men. The widow of one of them is an applicant before the courts. Her husband actually came on duty. He went to his office and performed a few minutes duty; he came downstairs for a reason that nobody can now say, and was confronted by another member who had an altercation with him and shot him dead and then committed suicide himself. In that extraordinary case the question arises: was the man on duty? I say he was. He reported for duty. He had taken up the duties of his office and for a moment came downstairs when this unfortunate occurrence arose. Such a thing may arise in many other circumstances apart from this case. I say it is unfair to place the onus on the dependent applicant of proving that at the time the deceased member was actually on duty. I seriously suggest to the Minister that he should remove from that provision the words: "in the performance of his duty," so that the provision would then cover a man while actually on duty.
In the award of special pensions, where men are injured or die as a result of accidental injuries received while on duty, the policy of the Department of Finance, I understand, is to award a pension to a man while he was actually on duty, proceeding from his duty or to his duty. I seriously suggest to the Minister that he should make that provision now, so as to relieve the dependents in these cases from the obligation of proving that a man was actually on duty at the time. I do not think it is fair to the dependents of deceased to ask them to prove that. I am putting it to the Minister that he has an opportunity of mending his hand in these cases and of making it easier for applicants to get compensation. I think it is only right that this House also should make it easier for them. There should be no obstacles put in the way. We should approach this matter in a generous, open-hearted spirit. The words are tautological in any event: "in the performance of his duty", "while actually on duty". It is very difficult to assign a meaning to them. A pointsman may have to leave his point, or a man on beat duty may have to leave his beat. If he is momentarily off his point or beat, and is killed during that moment, the dependents cannot claim compensation. I suggest that a narrow interpretation like that should not be imposed on the unfortunate applicants who have to seek compensation. They have enough worries and troubles without adding to them. As I have said, if the Minister takes this opportunity of mending his hand in the matter of extending compensation to those who died between the years 1922 and 1942, he will probably have to consider some consequential amendments, such as whether the compensation should be paid to the personal representative or the next-of-kin. I appreciate that it would be difficult in their cases to adhere to the provisions of the 1941 Act. I think that in their cases, if you do agree to extend the principle of compensation to them, you will have to bring in some form to provide for the payment of the money to the next-of-kin or the personal representative of the deceased.
I must say that I was personally disappointed that this Bill did not make some provision for men injured in the course of their duties. The provisions of the 1941 Act on this point are briefly these: that a member injured on duty is entitled to apply to the Minister for compensation. If the Minister is satisfied that the compensation can be met within a sum of £100 he may award a sum not exceeding £100. If he is satisfied that no compensation is payable there is no appeal. In other words, the courts are shut out in the matter of injuries. The Minister has also the power to decide whether the duty upon which the member injured was engaged was duty involving a special risk. It is very difficult to lay down a hard and fast rule on this question of risk. A man may be put on the protection of land in one county and be perfectly safe. There is no risk whatever in that; it is a perfectly easy job. A man may be put on the same duty in another county and it is highly dangerous. A man may go out on ordinary beat duty and meet some ruffian who will beat him up and maim him for life. There is no special risk involved in that duty, but, nevertheless, the man is maimed for life. I suggest to the Minister that he will have to widen the provisions in that respect.
I seriously suggest to the Minister that this business of an official decision within his own Department is contrary to the rules of law. We have in every Act that comes before this House the tendency to hand over judicial functions to the Minister of the particular Department piloting the Bill. When we hand over judicial functions to the Minister, in practice we are handing them over to some anonymous civil servant who has not to answer to this House for his acts. We are also handing over the functions of a judge and of a jury, perhaps, to these civil servants. I seriously suggest, without casting any disparagement whatever on civil servants, that they are not fitted to adjudicate in matters where questions of law are involved. I will go further and suggest that in the deciding of these matters only a Departmental, official, one-sided view may be taken. Further, when a particular Department, say the Department of Justice, gives a decision on these matters and is prepared to act decently and generously, it may find itself overruled by the Department of Finance. The watchdogs of the Treasury are there to see that the Minister does not err in the way of excessive generosity. I do not want to go into this question of the administration of law on this Bill, but I will say this, that if a citizen is injured in the course of his employment he is entitled to go to the courts for redress if he feels aggrieved by any award granted to him by his firm. The same principle should be extended to members of the Gárda under this Bill. It is not fair, just or reasonable that they should be restricted from appealing to the courts if they feel that they have a grievance in the amount awarded to them under the head of injuries. A man who is seriously injured may be told by the Department official: "We will give you £50". It may be a serious wound and he has no idea what the result of it may be, in years to come. I do not know whether the Department official has a medical examination made of the applicant, to satisfy himself by expert advice that this man will not, in years to come, be maimed and unfit for duty. I put it to the Minister that the fairest way to deal with this matter is to allow the applicant to thrash his case out in court, produce his expert evidence and give both the State and the applicant the opportunity of cross-examination.
When you deal with this matter behind closed doors in Government Buildings the applicant hears no more about it until a decision is reached; he has no opportunity of fighting his case, of being heard in person and cross-examining the official on his view of the matter or on any evidence the official, in the exercise of his duty, may have collected on the particular application. I have personal experience of one case in which a member of the force was seriously wounded, receiving a bullet in the thigh. The Minister decided to dispose of that case departmentally and awarded the sum of £50. On that occasion a colleague of that man was shot dead. I do not know whether this man's wound was serious or trivial, but I do know he had a bullet wound in the thigh, and I know from men who have received wounds that there is a tendency, in middle and later life, for the muscles to contract and for certain disturbances to occur in the system. It is quite on the cards that, while this man may be young and fresh now, he may suffer from this injury later. In a case of that kind the applicant should have had the right to go to court, as the award of £50 was altogether inadequate. A civilian in similar circumstances, applying to the courts in an ordinary action of negligence, would get something more like £500 than £50.
I know that the present Minister is generously disposed towards members of the Gárda, and I know the officials of the Department are, too, but I am arguing this case impersonally in regard to the future. We do not know who the future Minister may be or what Departmental officials may be in charge, so there should be a right of appeal from the Departmental decision in these matters. I agree to let the Minister decide departmentally, as nine cases out of ten will come within that category, but I would let the doubtful case have the right of appeal to the court. The case I mentioned is well known to the Minister, and I need not stress it further.
As I am personally aware, there is a certain amount of uneasiness in the Force on this point. In all fairness to the Force and to the Minister, the right of appeal should be given in the case of injuries. It would relieve the applicant from any suggestion that he did not get a fair hearing and it would relieve the Force and the Minister from any suggestion that undue influence was exercised in favour of one applicant, or against another. Considerations of that type may arise, and it would be only fair that the present Bill should be extended to include these particular items.
I wish to stress the point I have made already, that loss should be placed upon the widest possible basis, to include general damages, to include not only pecuniary losses but something as a solatium for the injured and outraged feelings, something for the loss of a consort, of a husband or a father, something that, as was laid down in the O'Connell versus Tipperary County Council-case, will be full and adequate compensation for the dependents. This Bill does not touch injury in the case of Gárda injuries. I think that it should. We have cases on record of men who were very seriously injured on ordinary duty. Under the old law, these men were not entitled to any compensation; under the new law as it stands, under the 1941 Act, the Minister has the final decision in the matter. I am putting it to him that it is impossible to decide what duty of a policeman involves a special risk. I do not believe anybody can determine it. We had a case in Dublin not very long ago of a man who was seriously maimed and got no compensation; we had a case of a man whose right jaw was broken and whose left jaw was fractured and he was, in the legal sense of the term, maimed, but he got no compensation.
There may be a thousand and one cases in future where men are injured on ordinary beat duty. Therefore, the Minister should divest himself of this power to decide what is and what is not a special risk. There is no way of determining that. A man may be on ordinary beat duty at a street corner and a bank robbery may take place; he may find himself suddenly confronted by gunmen and, although he is not on special duty, he may find himself in extraordinary circumstances, in the flash of an eye; he may be injured and if so, is the Minister to decide that he was not on duty of a special nature? These matters should be left to the courts and, consequently, I appeal to the Minister to consider seriously the amending of Section 6 of the 1941 Act, so that aggrieved applicants who are not satisfied with the amount of their compensation or whose claims for compensation have been rejected by the Minister, may have the right of appeal to a court. That is not asking very much. It is the ordinary right which the ordinary citizen has and I appeal to him and to the House to provide these facilities.
These men are members of a silent service; they have no trade union and are not allowed to affiliate with any trade union body; they cannot exercise the rights which an ordinary man can exercise. They have a Representative Body, it is true, but that body is merely a safety valve which the Minister permits to enable the members to blow off steam occasionally. My experience of it is that very little notice is taken of the Representative Body resolutions. The same old hardy annuals crop up year after year—"they are under consideration" or "they will be considered" or there is no answer given. These men cannot approach this House, they cannot send a deputation to any of the Parties in this House or to individual Deputies, as may any other body of citizens. They must ventilate their grievances through the Representative Body, the Commissioner and the Minister, and all other channels of appeal are taboo. They are prohibited by regulations from doing any of these things. Further more, these men have no votes; they have no way of influencing political opinion in the country. They are in that sense in a helpless position. I think it is only fair, therefore, having regard to the handicaps under which they operate, having regard to the difficulties in which they find themselves in putting forth their grievances, wrongs and troubles, that we should give wide powers in this measure.
These men are prepared to give their lives for their country. Few, if any, in my experience have shirked their duties. They have stood up to the criminal, whether armed or unarmed.
They have set as high a tradition in police work as obtains in any country in the world. They went out as an unarmed force into an armed countryside. They went out in a time of chaos and disorder to restore law and order. They succeeded in doing that. The older members, of whom I spoke, established an honourable tradition which I am pleased to say is being followed to-day. These men have shown that they are prepared to serve their country irrespective of Party, creed or class; that they are prepared to serve any Government set up by the majority will of the people. They have shown themselves loyal to the State and to the institutions and the Government of the State. Having regard to all these facts, I ask the Minister to give these men the rights which they claim under this Bill. I ask the Minister to take this opportunity of, once and for all, disposing of this matter of Gárda compensation. We have a chance now; let us use it; otherwise we shall find ourselves coming back with an amending Bill in a few years' time.
I do not think that these matters should come too often before the House. It looks ungenerous on the part of the State if they have to come before the House frequently for legislation. Now is the time to do it, and I ask the Minister to take his courage in his hands and go the whole hog and give these men what they are entitled to. I believe that he will have no reason to be dissatisfied if he takes his courage in his hands now and amends the Bill on the lines I have suggested. It would save me the trouble if the Minister would put all these things down as Ministerial amendments, but I certainly intend to put them down for the Committee Stage if there is no sign from the other side.
