Four amendments have been submitted to this Bill. No. 1 is out of order, first, as being outside the scope of the measure; and, secondly, because it would impose a charge and make the Minister liable for certain things not in the original Bill. No. 4 is submitted, I suppose, in case No. 1 should be carried, and so is out of order, as it would extend the scope of the Bill. With regard to Nos. 2 and 3, the Deputy submitting them says they are put down for the purpose of clarification. If that is so, they are in order, but if they would involve a charge, actual or potential, they are out of order.
Gárda Síochána (Compensation) (Amendment) Bill, 1945— Committee and Final Stages.
I do not think they will involve any extra charge.
Or unduly enlarge the scope of the measure?
Mr. Boland
I do not think so.
My purpose in putting down amendment No. 1 was to bring to the notice of the House and the Minister an anomaly which has arisen in certain cases.
Perhaps the Deputy will wait until we have dealt with Section 1.
Section 1 put and agreed to.
I move amendment No. 1.
The Deputy cannot move it as it is out of order. If an amendment is out of order, it cannot be moved or discussed. The Deputy can make his case on the section.
SECTION 2.
I move amendment No. 2:—
In sub-section (1), line 21, to delete the words and brackets "(including assets of the deceased)" and to substitute therefor the following words and brackets "(real or personal)".
My purpose in moving this amendment is to clarify the definition of "property (including assets of the deceased)". I am particularly anxious to ensure that any assets, real or personal, for example, insurance policies, cannot be taken into consideration by the court. Up to now the courts have interpreted the Act of 1941 on the basis of the principles laid down in Lord Camp-bell's Act, and the House and the Minister are, I am sure, aware that it was necessary to amend Lord Campbell's Act to ensure that in assessing pecuniary benefits accruing to the relatives or dependents of a deceased insurance policies would not be taken into consideration. Generally speaking, the purpose of my amendment is to ensure that the provision now being made is watertight and that any assets whatever of a deceased will be excluded.
Mr. Boland
I am advised that the expression "assets of the deceased" includes all his property, real and personal. I am quite satisfied that the Deputy's point is covered.
In other words, if a deceased person had an insurance policy maturing on death it is not included for the purpose of reckoning compensation?
Mr. Boland
Or a house, or anything of the kind.
Amendment, by leave, withdrawn.
I move amendment No. 3:—
In sub-section (2) (a) (iv), line 47, after the word "loss" where it first occurs to insert the words "or damages, and in assessing damages in the case of a widow or child of a deceased member of the Gárda Síochána have regard to the loss of consortium and to nervous or physical breakdown through grief or shock or outraged feelings."
This amendment is moved with the same object as I had in the last case. I understood the Minister to say on the Second Stage that he had been advised that the words "any loss (other than financial loss)" contained in Section 2 (2) (a) (iv) were sufficiently wide to cover such considerations as loss of consortium, break up of the home, loss of husband or father and solatium for injured and outraged feelings. Having regard to the provisions of the 1919 Act, I think that these particular considerations are excluded and that loss may still be interpreted in the legal sense of pecuniary or property loss. It would, I think, still be necessary to widen the provision in some way to enable the courts to take into consideration the matters I have included in the amendment. Under the 1919 Act, the law was finally settled in the case of O'Connell v. Tipperary County Council regarding the award of a full measure of compensation. It is not at all clear that, even now, the courts are in a position to award a full measure of compensation.
Mr. Boland
Here, again, I am advised that this clause is a very wide one. It is set out in paragraph (a) that
"the compensation shall be such sum as the judge thinks reasonable, having regard to all the circumstances of the case."
That includes the matters to which the Deputy has referred or any other loss which the judge may think fit to take into consideration. This is the way the draftsman has put the matter and I prefer it to setting out in detail what should be taken into consideration.
Would there be any objection, so as to make sure that the point with which Deputy Coogan is concerned will be covered, to including the substance of his amendment in paragraph (a)
"the compensation shall be such as the judge thinks reasonable, having regard to all the circumstances of the case, including..."
the matters set out in the amendment.
Mr. Boland
The danger is that if you specify some things you may exclude others. The provision is as wide as it could possibly be. If details are set out, the judge may think that these were what were in our minds and may exclude matters, which, otherwise, we would take into consideration.
Could you not say "with particular reference to" these matters?
Mr. Boland
I can see no advantage in that. I tried to have the provision drawn as widely as possible and I was advised that this was the best way to put it.
Will the Minister consult his legal advisers on this point?
Mr. Boland
When I got the amendment, I considered it from every angle and that is the advice I got.
That paragraph (a) covers all the points that Deputy Coogan seeks to include?
Mr. Boland
Yes, and any other considerations which the judge thinks should enter into the matter.
Amendment, by leave, withdrawn.
Question proposed: "That Section 2 stand part of the Bill."
On the section, I should like to direct the Minister's attention to an anomaly which has arisen in a recent case which is sub judice. It has, in fact, been adjourned for the purpose of enabling this House to consider some form of amending legislation. Under the 1941 Act, compensation can be awarded only in the case of the death of a member of the Gárda from injuries maliciously inflicted upon him in “the performance of his duties as such member while actually on duty”. That puts the onus on the dependents to prove two things—(1) that when the Guard received the injuries from which he subsequently died, he was acting in the performance of his duties, and (2) that he was actually on duty. The case I have in mind will not be covered by the second paragraph of Section 2 (1) (d) (ii) “while exercising powers or otherwise acting in his general capacity as a policeman when off duty or on leave or otherwise not actually on duty.” A policeman may be proceeding to his beat or to his point if he is on traffic duty. He is confronted with a sudden emergency and has to act. He receives injuries from which he subsequently dies. Under these provisions, that man would not be covered because he has not been killed while in “the performance of his duties while actually on duty”. He is only proceeding to his duty. Neither is he killed because he has been “exercising powers or otherwise acting in his general capacity as a policeman when off duty”. If a member of the Gárda is proceeding to or from duty and is maliciously killed, the court should have power to award compensation. In these circumstances, the court at present finds itself in a difficulty.
In the case to which I have referred, the Gárda had actually arrived at the station before the hour at which he would normally take up duty in his office. During the quarter of an hour he was waiting, an unfortunate altercation arose between himself and another member of the force—not in his office but downstairs in a storeroom. As a result of the altercation, the other party pulled a gun upon him and killed him, subsequently committing suicide. There is no doubt about malice in that case. The act itself would, I think, prove malice. But it is not at all clear that the unfortunate man was killed in "the performance of his duties while actually on duty", and the onus is on the widow to prove those two things. I think that it is unreasonable to place that onus on dependents of deceased Gárdaí. I ask the Minister to consider some means by which an event of that kind can be covered, now that an opportunity has been given to widen the scope of legislation.
Mr. Boland
When this matter was raised on the Second Reading, I said that I did not propose to widen the scope of the Act or to include within its provisions cases not already within them. I do not want to comment on this particular case. If the judge finds that the case comes within the Act, well and good, but, if he does not, I am not prepared to widen the scope of the Act. On the point raised by the Deputy, may I read Section 2 of the Act of 1941:
"This Act applies—
(a) to the death of a member of the Gárda Síochána who dies after the date of the passing of this Act from injuries maliciously inflicted...
(i) in the performance of his duties as such member while actually on duty or
(ii) while exercising powers or otherwise acting in his general capacity as a policeman when off duty or on leave or otherwise not actually on duty, or
(iii) while on duty or off duty or on leave or at any other time because of anything previously done (whether before or after the passing of this Act) by him as a member of the Gárda Síochána or merely because of his being a member of the Gárda Síochána".
I think these provisions are wide enough to bring in the types of cases which the Government considered should be dealt with under that Act. If this particular case comes under it, then it does and that is all. What I am providing for in this amending Bill is that there will not be a rigid financial interpretation of loss. In that way I am giving the court a wider discretion to take other things into consideration than merely financial loss, and not to include the assets of a deceased Gárda. I do not propose to widen the scope of the Bill any more. If I were to do what I am asked to do it would widen it very much.
The Minister will appreciate that under the three provisions he has read out the case that I have in mind would not be covered at all.
Mr. Boland
I am not deciding that.
From the case as reported in the newspapers it would appear that the judges find a very great difficulty in this particular matter. It is hard to prove (1) that the man who was murdered was acting in the performance of his duty or (2) that he was actually on duty. In this case I think the court would hold that he was not doing either of these two things. It is possible that he would not come in under (2). The man had not actually taken up office duty. He came downstairs and was murdered by a comrade who had suddenly gone off his head. He was not murdered because of anything previously done, so that really it does not come within any of the three conditions laid down.
The Deputy will understand, of course, that it is outside the scope of this measure.
I understand. But I mention the matter because the court adjourned the case.
The court did not ask the House to legislate?
I think it did suggest something to that effect.
It cannot be done under this Bill.
I am only putting it to the Minister.
Mr. Boland
I have said all that I have to say. The judge has the say in these matters. If the case comes in, well I am not going to make any comment. It would not do for me to say whether it comes in or not.
Question put and agreed to.
SECTION 3.
Question proposed: "That Section 3 stand part of the Bill."
On Section 3, I should like to raise the cases of certain persons.
For reassessment?
For reassessment. I can do it now or on the Fifth Stage of the Bill. Perhaps if I were to do it now it would save time. The Minister made a promise that he would look into certain cases which were not covered by the 1941 Act. I think there are about eight of these cases involving deaths and maiming. I understand that over a long period of years efforts have been made to try to get a settlement of them, but nothing has eventuated. I am sure that is not due to any stone-heartedness on the part of the Minister, personally. The fact, however, remains that nothing has been done. Would the Minister intimate definitely now if it is intended to do anything in the cases of persons who are affected, either of his own volition or by setting up some kind of an interDepartmental committee which might examine the cases and report to him as to what would be equitable compensation, having regard to the provisions of the 1941 Act and the wider provisions which are being made for compensation in this Bill? The number of persons concerned is not very great. Their relatives have suffered as much as those affected by the 1941 Act. I think that the Minister at this stage, knowing the agitation that has grown up around these cases, might say definitely what he intends to do.
Arising out of Deputy Norton's remarks, the Minister did give us an assurance on the Second Stage that in any of these cases where a claim was made he would consider it.
Mr. Boland
I dealt with that on the Second Reading, and said that there had been no claim since in which dependency had been established.
I would like to bring to the Minister's notice one case which has since come to my knowledge. It is the case of Guard Ward, who was murdered, I think, in 1926. I understand that his mother is at present in a mental hospital to which she was committed shortly after her son's death. It is quite possible that, in a case of that sort, no one has put forward a claim on her behalf. I would ask the Minister to investigate the circumstances of that case with a view to giving Mrs. Ward some allowance. There may be other members of the family who would be entitled to claim, but the fact is that no claim was made which may be due to the circumstances I have mentioned.
Mr. Boland
A claim was made in that case.
There were some other cases that, I think, were outside the State.
Mr. Boland
The Deputy also mentioned the case of Guard Morrin. I have not been able to trace a claim in that case. As I have said, a claim was made in Guard Ward's case.
Was there any payment granted in that case?
Mr. Boland
There was an ex gratia payment of £80 and a sum of £70 for expenses.
Would the Minister say——
Mr. Boland
Deputy Norton was not present when I dealt with this matter.
Unfortunately, I was not able to attend on that day.
Mr. Boland
I dealt with this matter on the Second Reading of the Bill. I have a full list of the cases relating to dependency. In the case of a superintendent who was murdered in the County Tipperary the court gave what was considered to be ample compensation. In all the other cases dependency was not established. In most cases the parents of unmarried Guards were alive and had other children contributing to their support. I think that provision runs through every Pensions Act, that dependency must be established. In the absence of proof of dependency, I can do nothing. I am informed by my officials that, since I made that promise at the time that the 1941 Act was passed, no claim in which dependency could be established has come forward. As I said last week, if cases do come forward in which dependency can be established, we can meet them by ex gratia payments.
Apart from dependency, it is correct to say, I think, that under the 1919 Act compensation was payable not only to dependents, but to the next-of-kin or the personal representatives of the deceased. That is a much wider provision than we have in the 1941 Act. In this case that I have been referring to, the Minister might perhaps interpret it on a slightly wider basis than mere dependency, having regard to the provisions of the 1919 Act.
Mr. Boland
That is not for me alone. There is a settled procedure in all these cases, and I am naturally bound by that. I am prepared to look into any case that may be made to me.
Where there is an application, who decides the issue of dependency? Is it decided by the Minister, for instance?
Mr. Boland
I do not think so.
Is it decided by an official in the Department?
Mr. Boland
The court decides these cases as far as I can see. In the case of a Guard O'Halloran the court refused the application. In another case in Ennis a father's claim was granted. The Clare County Council appealed, and the High Court reversed the decision given. There was another claim refused by a Circuit Court judge. There was a claim for £2,000 under the Grand Juries Act, which was heard at Thurles, and no award was made.
I am raising the case of those not covered by the 1941 Act and who subsequently submitted a claim for ex gratia compensation on the grounds of dependency. I want to ascertain from the Minister, when a claim comes in which is not covered by the 1941 Act and which is based on an ex gratia payment, who decides or would decide the dependency?
Mr. Boland
No such case has come in. I daresay that that would be a matter for the Minister for Finance and myself to consider, if it were going to be ex gratia. No case has come in to me and no claim has been made. We would have to go into all the circumstances, and if suffering should be shown as a result of the loss or death of the Guard, the Minister for Finance and myself would have to deal with it. The claimant would not really have access to the courts.
Is this totally dependent or partially dependent?
Mr. Boland
Do not get me down to details like that now. I am not going to commit myself. Let the Deputy bring up any case and submit it and it will get a fair hearing.
I take it that a partial dependency would not be ruled out?
Mr. Boland
I cannot say. We will take in all the circumstances, but I am not going to be committed.
Under the Workmen's Compensation Act, a person who is partially incapacitated gets compensation.
Mr. Boland
I am not turning it down, but I would want to see the case. I am not going to be tied.
I want to try to soften up the Minister before he sees these cases, by telling him what the position is. I take it that, if a case is brought to the Minister's attention, where there appears to be hardship inflicted on some relative of a deceased or maimed Guard, it will not be excluded from consideration because complete dependency is not established.
Mr. Boland
I am not going to commit myself. The Deputy knows that in these cases every Minister has to consult another Minister, the Minister for Finance. I cannot tie myself up, but I can say that, if it can be shown that some real relative is suffering as a result of the death of one of these Guards, the case will get full consideration. I will go no further than that.
May I take it that the Minister will not be influenced by the fact that certain claims were rejected by the courts between 1922 and 1932?
Mr. Boland
Almost all of them have been turned down by the courts.
They came under the old provisions of Section 106 of the Grand Juries Act, which laid down that, unless the deceased were killed because of his exertions to bring criminals to justice, they could not be admitted.
Mr. Boland
I will take that into consideration. That is why I think some of these cases failed.
That is why they all failed, in fact.
Question put and agreed to.
Section 4 and Title agreed to.
Bill reported without amendment.
Agreed to take the remaining stages now.
Question—"That the Bill be received for final consideration"—put and agreed to.
Question proposed: "That the Bill do now pass."
On this stage, Deputies may discuss what is in the Bill, not what is not. On the Second Stage, Deputies could discuss what is not in the Bill.
I did mention this point on the Second Stage.
Do not attempt to mention it now.
It is just a small point relating to the injuries. I want to correct a misapprehension the Minister may have laboured under on the Second Stage. I had not in mind the case of a black eye, or loose teeth, or a crack in the jaw, or anything of that kind. When I mentioned this matter of the right of appeal in cases of injuries, I had in mind more serious injuries. Under the 1941 Act, the Minister may decide these matters himself and there is no right of appeal. If he satisfies himself that the case comes within the £100 compensation clause, he decides the thing finally for all time and there is no right of appeal. I feel that the injured party is being denied the right of every citizen—the right to appeal to the courts in this matter. It is contrary to natural justice and to the rights each citizen has under the Constitution. I think that some provision should be made somewhere, some time, the sooner the better, to give an aggrieved person the right of appeal to the courts if he is not satisfied with the Minister's decision. That may or may not involve a charge on public funds. It is quite possible that a vexatious claim might be made to the courts, in which case the person might find himself getting a smaller amount than that awarded by the Minister. It cuts both ways, but I object to passing a matter of that kind without some form of judicial appeal.
I think the Deputy has got this point in. If it is to be got sometime, somewhere or somehow, I think it is not here.
I agree.
The Deputy has been allowed to make his point.
Question put and agreed to.
I certify that this is a Money Bill, within the meaning of Article 22 of the Constitution.