Dáil Éireann díospóireacht -
Thursday, 24 Jul 1941

Vol. 84 No. 17

Gárda Síochána (Compensation) Bill, 1941—Money Resolution.

Minister for Justice (Mr. Boland)

I move:—

That is is expedient to authorise any payments out of moneys provided by the Oireachtas which may be required to give effect to any Act of the present session to make provision for the granting out of public moneys of compensation to dependents and partial dependents of members of the Gárda Síochána (whether serving or retired) who have died or shall die at any time on or after the 1st day of January, 1940, from injuries maliciously inflicted on them in the course of or in relation to the performance by them of their duties as members of the Gárda Síochána, and for the like granting of compensation to members of the Gárda Síochána (whether serving or retired) on whom personal injuries not causing death have been or shall be similarly inflicted at any time on or after the 1st day of January, 1940, and to make provision for matters incidental to or connected with the matters aforesaid, including the extension of this Act to other police forces.

Mr. Norton

I had better take advantage of the Money Resolution to raise a question in relation to Section 3, in the hope that the Minister may look into it between now and the time when the Bill is discussed in the Seanad. In Section 3 we catalogue the persons who are entitled to make an application for compensation under this Act, and I do not understand why, in fact, we set out categories of people in the manner adopted in that section. I think the old phrase in the Criminal Injuries Act, 1919, was "personal representative", which seemed to give any person with any substantial claim the right to sue under the Act. In this case, "personal representative" is omitted, and, instead, we get categories of persons entitled to make application. The categories, however, are not as wide as the phrase "personal representative" in the Criminal Injuries Act, 1919, because, for instance, a Gárda officer might lose his life and he might be maintaining, for instance, a nephew or a niece. He might have maintained them for a long period. There might have been no doubt whatever of the fact that he was maintaining such persons. Yet there is no possibility, under Section 3, of such a person being able to bring a claim for compensation. I do not know whether the Minister desires definitely to exclude such persons. If they have no substantial claim, of course, they ought to be excluded, but if they have a substantial claim then we ought to allow the court to adjudicate on the point.

Mr. Cosgrave

That point has been put to me also, with this further extension, that while provision is made for any dependency of a nephew or a niece and also of a sister of a deceased officer appearing either before the Minister or the court, as the case may be, there is no provision made in such a case arising where his sister dies and where the dependency of the nephew or the niece was partial rather than entire. It was put to me that if "personal representative" were included in the list it would meet that case.

Mr. Boland

I am told that the case of a niece or a nephew would come under the category of adopted children, if they were dependent. I believe they are covered under clause (f). So I am advised.

Mr. Cosgrave

Yes, that is in cases where there was entire dependency but the cases that were mentioned to me were those in which the dependency was only partial, that is, that the officer had not undertaken at all times to contribute towards the maintenance of the nephew or the niece but that he had given some assistance towards it. It was a limited amount. It may be that it is met under this but it was put to me in the same way as Deputy Norton has put it, that the Criminal Injuries Act set down personal representative and that that particular designation is absent from this list.

Mr. Norton

It seems rather unusual that an adopted child should include a niece or nephew because there may be no formal adoption at all. There may be a sort of recognition of the fact that the niece or nephew is, through economic necessity, thrown with the deceased officer, and the Minister may discover afterwards that "adopted children" does not include niece or nephew. I take it, from what the Minister says, it is not his desire to exclude a niece or nephew. Would the Minister look into the matter between now and the time when the Bill comes to be discussed in the Seanad with a view to covering niece or nephew?

Mr. Boland

I am satisfied they are covered. Representations were made on that point and I inquired into it, and I am given to understand they are covered. As for Deputy Cosgrave's point, I think sub-section (1) of Section 8 would cover partial dependency—"that the applicant was wholly or partly dependent."

Mr. Fitzgerald-Kenney

That would not enlarge the classes.

Mr. Boland

I am advised that they are covered there.

Mr. Fitzgerald-Kenney

There seems to be a certain lacuna here, because though I think the words "adopted child" would be taken to be a child to whom the deceased person stood in what is called loco parentis, in the place of a parent, without any formal act of adoption, if there were one of these cases where a police officer has been helping some of his poorer relations, where he has been contributing to the schooling of a boy whose father and mother are still alive or something of that kind, they have suffered a very real material loss, and they would not be provided for in this Bill. I understand it is such cases that Deputy Norton and Deputy Cosgrave referred to. They would not be provided for. What the Minister says is that under Section 8 he must be satisfied that the applicant was wholly or partly dependent on the said deceased person, but then an applicant must be one of these persons who are mentioned in Section 3. So that does not help. The two things must combine. The applicant must be one of the various classes mentioned in Section 3, and must also, under Section 8, be wholly or partially dependent upon the deceased person. In other words, Section 8 does not enlarge, but rather restricts, Section 3.

Mr. Boland

My point was that it covered the partial dependency and I am advised that a niece or a nephew would be covered by that.

Mr. Fitzgerald-Kenney

No. With great respect, I would suggest to the Minister that before a niece or nephew who was partially dependent came in they would have to be one of the classes set out in Section 3 and a niece or nephew partially dependent would have to be an adopted child and that is rather a contradiction in terms. An adopted child, one might say, in most instances is totally dependent.

Mr. Dillon

I notice the Minister for Justice has assumed so benevolent an aspect in this House that Deputy Fitzgerald-Kenney is tempted to address him as though he was a judge upon the Bench. In fact, does not clause (f), sub-section (1) of Section 3, meet the case because will not the court hold that, if you talk of an adopted child who is partially dependent on the deceased person, the words "adopted child" there are not to be taken in their technical meaning of a person who is related to the deceased person by a legal process of adoption but in fact a child for whom the deceased person has adopted partial responsibility? If a child were related to a deceased person by legal adoption the deceased person would have been liable for his total maintenance. If you adopt a child legally you become as liable for its total maintenance and education as if you were the child's parent and if the paragraph of the sub-section speaks of an adopted child for whom the deceased person was partially responsible, that obviously means——

Mr. Norton

That is what Deputy Dillon thinks it means.

Mr. Dillon

The Minister himself says he is not a lawyer. Deputy Norton is not a lawyer. I am not a practising lawyer and Deputy Fitzgerald-Kenney does not profess to be giving the House a legal opinion; he is merely contributing his wisdom to the general discussion. It appears to me that clause (f) covers the point.

Mr. Fitzgerald-Kenney

Might I suggest to the Minister, to meet the House, to strike out the words "adopted children" and put in the word "relatives"? The clause would then run: "relatives of such deceased person who were at his death under the age of 21 years and were supported, maintained and educated wholly or partially by such deceased person."

Mr. Boland

We have mentioned so many relatives in all the other clauses.

Mr. Norton

If the Minister adopts Deputy Fitzgerald-Kenney's suggestion there is a danger that the adopted child may, in fact, be cut out.

Mr. Fitzgerald-Kenney

It could be "adopted children or relatives".

Mr. Boland

There is no legal adoption here.

Mr. Norton

Would the Minister say what is the case for getting away from the beaten track—making it "personal representative"? It seems to be much more comprehensive than the catalogue set out here. It is much shorter and will allow the courts to determine who is the personal representative. The Minister ought to appreciate that this Bill arose out of a construction of the Grand Jury Act of 1836. That construction, or misconstruction, necessitates this. If we are going to remove whatever difficulties were experienced in the interpretation of the 1836 Act we ought to do it in some way that is clear, beyond all doubt. I will be satisfied, knowing the Minister's mind on the matter, if he will look into it between now and the time the Seanad discusses it with a view to meeting the points which have been put to him here.

Mr. Boland

I do not want to say I will do something that I will not be able to do. I have gone into this thing pretty fully, and I think practically every class that has been mentioned is covered. I am satisfied of that.

Mr. Norton

The courts will construe this. Will the Minister adopt the suggestion of Deputy Fitzgerald-Kenney to put in "adopted children or relatives"?

Mr. Boland

That would be too wide altogether. Goodness knows where we would land ourselves. The section includes the widow of such deceased person, children or step-children, parents, brothers, half-brothers, sisters and half-sisters, grandparents. And now we say "adopted children." I think everybody is covered.

Mr. Byrne

Would the Minister say whether "adopted children" means legal adoption? Would he not put in the words "dependent children"? It would be the easiest way. There are cases where people have taken over children, but did not legally adopt them.

Mr. Boland

They would have to be their actual children. There is no legal adoption.

Mr. Dillon

There is no legal adoption?

Mr. Boland

No.

Mr. Dillon

That settles it.

Mr. Hickey

Does not the State pay assistance for adopted children?

Mr. Boland

It is not legal adoption.

Mr. Hickey

But there is provision for it.

Mr. Norton

Will the Minister have this specially re-examined and meet the point in the Seanad, if necessary?

Mr. Boland

Yes, if I find that it is necessary, but I do not think it is.

Mr. Fitzgerald-Kenney

There is another matter, though I do not know if this is the best time to raise it. This proposed amendment by the Minister is making a very substantial alteration. As far as I understand the amendment —I have had it in hand only for the last few minutes——

Mr. Boland

I am sorry for that.

Mr. Fitzgerald-Kenney

——and have not been able to give it very careful consideration—it is now changing the scope of the Bill. If a Gárda receives any injury of any kind, he would be entitled to compensation. That is being narrowed by this amendment, as I understand it. If he receives injury of a minor character he will not receive compensation now at all, under this amendment. Is not that so?

Mr. Boland

Unless there is some special risk.

Mr. Fitzgerald-Kenney

Yes. The Minister defines that in one paragraph. Therefore a whole class goes out altogether—those with minor injuries, unless there is a special risk. Then, when dealing with the question of special risk, you define minor injuries as something which the Minister will adequately compensate with a sum of under £100. That means, as far as I can interpret this, that unless the Minister is satisfied that a Gárda has received injuries which would entitle him to compensation of a larger sum than £100, the Minister can fling his claim out altogether. That is not good.

Mr. Boland

He could do that.

Mr. Fitzgerald-Kenney

He must. For practical purposes——

Mr. Boland

If he is of opinion——

Mr. Fitzgerald-Kenney

"In case the Minister is of opinion that such injuries are of a minor character and were sustained in the course of the performance of a duty not involving special risk, the Minister shall refuse the application."

Mr. Boland

That is correct.

Mr. Fitzgerald-Kenney

And the next section shows what is meant by "minor character".

"In case the Minister is of opinion that, although such injuries are of a minor character, they were sustained in the course of the performance of a duty involving special risk and that a sum not exceeding £100 would be adequate compensation therefor."

Therefore, in that case an injury which would be compensated for adequately by the full sum of £100 is still regarded as a minor injury because, if you had "minor injury" in (b) (ii) having a particular meaning it must have the same meaning in (b) (i). It is regrettable that the Bill should be narrowed down so that a Gárda injured in the ordinary course of his duty will receive no compensation unless he has been so seriously injured that he must receive a sum of over £100.

An Ceann Comhairle

Would it not be better to discuss it on the section?

Mr. Fitzgerald-Kenney

Possibly. I was not quite sure as to where it should be raised.

An Ceann Comhairle

Inevitably the discussion will arise again on the section.

Mr. Norton

Would the Chair permit a discussion on the Money Resolution, on the understanding that there will not be a discussion on the section, as we have wider rights on the resolution?

An Ceann Comhairle

Would the Deputy guarantee that no other Deputies will intervene?

Mr. Norton

There are not so many here.

An Ceann Comhairle

But there may be.

Mr. Norton

It would be very unusual. I understood that the Minister agreed yesterday evening that, in questions of claims for compensation where there are injuries or in respect of death of a member of the Gárda, the Minister would throw the whole responsibility on the court and say that, if a Gárda is foolish enough to go to court with a minor injury, to try to sustain an action not legally sustainable because the injury is a minor one, the Gárda is going to pay for it. The Minister comes along to-day and sets himself up as a judge in sub-section (1) (b) (i) and (i) (b) (ii). In (1) (b) (i) he takes power to decide that injuries are of a minor character, and in (1) (b) (ii) he takes power to decide whether the injuries sustained are of a kind that compensation should be paid up to a sum not exceeding £100. These are functions which I do not think the Minister should exercise at all.

When I heard the Minister say yesterday that he intended to throw the whole responsibility on to the courts, I had not an idea that he was still going to reserve to himself the right to decide what was a minor case, and what kind of compensation should be paid for a minor injury. That is what the Minister is doing in (i) and (ii). I suggest to the Minister that these are not Ministerial functions at all, and that it would be very much better, from his own point of view, and very much more equitable, if he were to allow the cases to go to the courts and let them decide. This is not at all in accordance with the spirit of the assurance the Minister gave yesterday.

An Ceann Comhairle

The discussion on the section would be quite wide enough to allow such arguments as the Deputy has advanced.

Mr. Dillon

Is it not as well to let it finish itself out now? There is nobody here to intervene.

An Ceann Comhairle

If the House so desires.

Mr. Dillon

Surely the Minister has walked into the very trap that he sought to avoid yesterday. If a Gárda is injured and the Minister's advisers say that £50 would pay well for anything that has happened, pressure may be brought on the Minister to let this man go to court. Remember, the man goes into court with an implied certificate that the Minister thinks he ought to get more than £100. The fact that the Minister has permitted him to go to court is in itself a declaration that the Minister is of the opinion that he should get more than £100. Pressure might be brought on the Minister to let So-and-so go to court, and let the court decide. What is the point of this? Is it to save money for the Gárda applicants—to avoid costs? Is that it?

Mr. Boland

There is something being done here that never was done before. Hitherto, if a man received an injury in the ordinary course of his work, he was not compensated at all. You may have a Gárda getting trivial injuries—say, in arresting a drunken man, he gets a kick in the leg or a black eye—and going to the court for compensation for that. I would remind the House that, if Section 6 were to stand as it was, he would have to get some compensation. Then there would be different witnesses of all kinds, saying that this black eye was of a different type from any other black eye and that it may lead to permanent injury. We might have all sorts of frivolous complaints calling for enormous compensation, and costs out of all proportion.

What I had in mind yesterday was that I would examine this and see whether anything of a major nature would be let go to the courts. These things that arise from day to day should not have an automatic right to go to the courts: the Minister should have the right to say: "This is a trivial thing." It may be a cut hand or a flesh wound which might be all right in a couple of days or a week. Surely no one here wishes the Gárda to have the right to go to the High Court for damages in a case like that? If I amended that section as was suggested yesterday by deleting the words "in the case of death" and leaving it "for all injuries," every Gárda getting any slight injury would have the right to go to the High Court and claim compensation. This was never done before. The Guards got no compensation up to this for injuries received in the course of their duties.

Mr. Norton

Why put in b (ii)?

Mr. Boland

I am differentiating between the risk which a Guard on ordinary duty incurs and the risk attending the arrest of a dangerous type of people. A Guard might have to deal with the members of some illegal organisation. Special risks might be involved in duty of that kind and an injury which turned out to be of a minor kind might easily have been of a major character. In the ordinary course of duty, every Guard incurs risk. It is part of his duty to take the ordinary risk of assault and surely it would be most unreasonable to involve the State in special expense in connection with every small injury which a Guard receives by giving him the right to go to court. Under Section 6, the judge would feel himself compelled to award some compensation in such a case and, probably, to grant costs. I want to avoid that.

Mr. Fitzgerald-Kenney

Let us take this matter bit by bit. As the Bill stood unamended, the Minister was bound to give compensation to the Guard in every case. He is now taking that right away and he says that, where the injuries are of a minor character, the Guard shall not be entitled to compensation. But he defines "minor character" as injuries which can be compensated for up to £100. That is what (b) (ii) says. Quite clearly, that is his conception of what a minor injury is. I do not suppose the Minister would award more than the Guard ought to get. But look at (b) (ii):—

"in case the Minister is of opinion that, although such injuries are of a minor character, they were sustained in the course of the performance of a duty involving special risk and that a sum not exceeding £100 would be adequate compensation therefor".

Therefore, some injuries that call for £100 compensation are of minor character in the Minister's estimation. Since that is the case in sub-section (b) (ii) the same interpretation must be put on it in sub-section (b) (i). Injuries of a minor character, therefore, mean injuries which can be compensated for by a sum not in excess of £100. That seems to me to be absurd. An injury for which a Guard is entitled to receive £50 or £100 is not trifling at all; it is a very substantial injury. If the Minister wishes to work out this, he would have to allow every case, no matter what the injury is like, if sustained in the course of the performance of a duty involving special risk, to go to court. The Minister says the High Court is very expensive. What ties claimants down to the High Court except this particular Bill? Why go to the High Court rather than to the Circuit Court, if the High Court is too expensive? I do not think that we contemplated yesterday that an alteration of this kind would be made in the Bill. I understood that all cases were to go to court.

Mr. Boland

I said I would examine the matter.

Mr. Fitzgerald-Kenney

In cases of death. I do not think that there would be any necessity to go to court. These cases could practically all be settled, because the compensation payable on death is actuarial. The only question which would arise would be in what proportions it was to be divided amongst the dependents. That might be easy to arrange. I do not like this amendment. It is introducing an entirely new principle which, to my mind, is cutting out from compensation Guards whose injuries are of a nature that £100 compensates for them if they are sustained in the ordinary course of their duty.

Mr. Norton

What happens in the case of a Guard who meets with an injury, obtains medical advice, puts in a medical certificate to the effect that the injury suffered is of a type which ought to be compensated for by a payment of £500 and the Minister under b (ii) says the injury can be compensated for by £98 and no more. If the Minister pays the Guard £98, there is no means by which he can get to the courts to appeal against the Minister's decision. One may say that, in these cases, the Minister is the defendant. If there is anything in the theory of collective responsibility, the Minister cannot pretend to hold the scales evenly between the Minister for Finance, on the one hand, and the injured Guard, on the other.

Mr. Boland

He will lean towards the Guard. The Minister of a Department will always do that in respect of the employees of his Department.

Mr. Norton

I should not like to see the Minister's leaning posture. I think that it would be an optical illusion. Yesterday, a protest was made against the Minister acting as defendant and judge. He introduced an amendment throwing responsibility on the courts. To-day he takes power to value injuries, and if a person makes a claim for £1,000, the Minister can say that the injuries will be adequately compensated for by a payment of £99 19s. 11d. If he does that, the person concerned cannot appeal and cannot get to the courts. I think he should be able to get to the courts. The Minister is taking unfair and arbitrary power, and I should prefer the old section to this amendment.

Mr. Fitzgerald-Kenney

Has the Minister any judicial experience? I am not thinking of the Minister for Justice, Deputy Gerald Boland. I am thinking of the ordinary Minister for Justice. Is he in a position, or are the officials of his Department in a position, to decide how injuries are to be compensated? Have they the judicial training to do so? Suppose a Guard has his leg broken. He gets his pay and his hospital expenses are paid. He is not under heavy, monetary loss, but he has suffered a very considerable amount of pain. I put the plain question to the Minister: How much money should a Guard who has suffered pain for three months from a broken leg, mending slowly, receive? That is the sort of question which the Minister will put before himself. Is he trained to answer that question? He may get the assistance of advisers in his Department, but he will have no trained evidence as to how the man suffered or whether he was malingering or genuinely in pain. When doctors are called in court, they express their opinions as trained men and their evidence can be sifted. The Minister may not have the advantage of medical evidence. If he has, it will be unsifted medical evidence. I do not think that this section is at all satisfactory and I cannot understand the Minister's attitude in fixing £100 as the distinction between a minor injury and an injury which is not minor.

Mr. Boland

As regards the case of a broken leg, the Minister will not have to settle that question. But how are we to deal with the case of a black eye or a bruised leg? There is no way of keeping these cases out of court except by introducing this provision. We are giving the Guards something they never had before. The Minister should certainly be able to say if a man gets a black eye, a bruise or a minor injury: "That is not a case for the court at all." Much as I should like to meet Deputies on the matter, I cannot give way on this. We are giving the Guards a very good show and we are not prepared to give way any further.

Mr. Fitzgerald-Kenney

Would the Minister agree to an amendment such as this: "In case the Minister is of opinion that such injuries are of a minor character and were sustained in the course of the performance of a duty not involving special risk, and can be adequately compensated for by the receipt of a sum of £5, the Minister shall refuse the application?" A minor injury would then be something that could be paid for by £5, but something that £100 would compensate for is not a minor injury.

Mr. Norton

My complaint is that the Minister takes power to say that the injury is something less than £100 would compensate for. What faculties has the Minister to determine a question of that kind? A man may think that his injury is sufficient to justify a claim for £300, and there should be somebody besides the Minister to express judgment on a claim of that kind. Whatever we may think of paragraph (b) (i), there is no case for exercising these functions in paragraph (b) (ii).

An Ceann Comhairle

I would suggest that the division, if one is challenged, should be on the section rather than on the Money Resolution.

Mr. Norton

Perhaps the Minister would like to look into the matter between now and the time that the Bill goes to the Seanad.

Mr. Boland

We might have 20 cases a day going to the courts if there were not some such provision as this inserted.

Mr. Fitzgerald-Kenney

What is the Minister's objection to my suggestion that instead of having a limit of £100 there should be a limit of £5?

Mr. Norton

The smaller the number of cases you will have, the more you reduce the figure of £100. You could make it £5 or £10.

Mr. Boland

Perhaps we could make it £50. The reason why £100 is mentioned in paragraph (b) (ii) is that if Gárdaí are engaged in work involving special risk one might be inclined to give them more money than the injuries received would justify. We have done that in order to encourage them to go after a particular type of organisation. Strictly speaking, the injured Guard might not be entitled to that amount on account of the injury he received at all. The first paragraph deals with the type of case where a Guard gets a bruise or something of that kind which can be easily seen. There will not be any dispute between doctors about it. In the other case if the man went to court he might not get as much as the Minister will allow him, but the Minister's attitude will be that, in view of the way he tackled that type of case, he will give him special consideration.

Mr. Norton

The Minister has given us a better idea now of what he intends to do.

Mr. Boland

That is the position. In the other case you could not dream of doing it.

Resolution put and agreed to.

Resolution reported.

Report agreed to.