2022 Act Reform
The main purpose of the Act is to repeal and replace the Garda Síochána (Compensation) Acts 1941 to 1945. The Acts of 1941 to 1945 provide for compensation in respect of death or injury which is maliciously inflicted upon a member of An Garda Síochána while on duty, or in connection with their duties. The previous scheme operated on the basis that an injured member, or specified dependants in the case of death, could apply to the Minister for Justice for authorisation for leave to apply to the High Court for compensation in respect of the injury received.
This 2022 Act aims to reduce the length of time it takes for Garda members, or their dependants in the case of the death of a member, to have their application for compensation dealt with from initial application through to award by providing for clear time limits in relation to each stage of the process. The process will ensure that avenues for settlement and resolution are available at the earliest possible stage to reduce the number of applications that proceed to court.
The functions carried out by the Minister for Justice in assessing claims at the initial stage were transferred to the Garda Commissioner, who arranges for the making of an initial assessment as to whether a member has been injured as a result of a malicious incident. There is a mechanism whereby decisions taken at the initial assessment stage can be reviewed by an independent review officer to be appointed from a panel established by the Minister for Justice, should an assessment conclude that the member was not injured as a result of a malicious incident or is not eligible to apply under the Act.
Where an assessment concludes that a member has been injured as a result of a malicious incident, such member or dependant is entitled to compensation and the Garda Commissioner arranges for an application to be made on the claimant’s behalf to the Personal Injuries Assessment Board, who assesses quantum in accordance with the Personal Injuries Assessment Board Act 2003, as amended. The State Claims Agency will act as the respondent on behalf of the Garda Commissioner.
The Personal Injuries Assessment Board process takes place in the normal way under the 2003 Act, subject to certain minor modifications as set out in the Act. As is the case with other civil actions that the Board assesses quantum in, it is only where a claimant or the respondent rejects the assessment made by the Board that an authorisation will be given to a claimant to proceed to court. Proceedings on foot of an authorization are will be treated in a similar manner to other civil actions for personal injuries before the courts, save for certain distinctions as set out in the Act.
a ’malicious incident’ which is defined as an incident, whether before or after the commencement of this Act, as a result of which personal injuries (which may include injuries causing death), were maliciously inflicted on—
- a member, where such injuries were inflicted—
- in the performance of his or her duties as a member while actually on duty,
- while exercising powers or otherwise acting in his or her general capacity as a member when off duty or on leave or otherwise not actually on duty, or
- while on duty or off duty or on leave or at any other time because of anything previously done by him or her as a member or merely because of his or her being a member, or
- a person who had previously been, but at the time when such injuries were inflicted, or at the time of his or her death from such injuries, had ceased to be a member, where such injuries were inflicted on the person because of anything done by him or her as a member or merely because of his or her having been a member;
This definition encompasses the key criteria for an award of compensation under the Garda Síochána (Compensation) Acts 1941 to 1945. This reflects the intention behind the Act to modify the processes surrounding Garda compensation claims, while retaining the parameters of the right to compensation for Garda members who are injured as a result of a malicious incident, or their dependants in the case of a death.
The Minister for Justice to make regulations under the Act as necessary for the operation of the Act, and provides that any regulation made under the Act will be laid before the Houses of the Oireachtas. For example, regulations will be made to prescribe the form of the application to the Garda Commissioner .
Applications which have been authorised by the Minister for Justice to proceed to the High Court will not be affected but cases that have yet to be authorised by the Minister for Justice will come within the ambit of the Act and the new process for Garda compensation claims.
Where a claimant has taken successful judicial review proceedings against the Minister in respect of a decision taken under the Garda Síochána (Compensation) Acts 1941 to 1945. The court, in making an order of certiorari in respect of the Minister’s decision, will also order a claimant to make an application to the Garda Commissioner under this Act.
There is provision for the return of the application to a claimant following the ruling of the court under informing a claimant that an application for initial assessment may be made to the Garda Commissioner.
Where the Minister for Justice has not yet made a decision in relation to a claim under the Garda Síochána (Compensation) Acts 1941 to 1945, the Minister for Justice will return the documentation to a claimant and inform him or her that an application for initial assessment may be made to the Garda Commissioner under the new process. A claimant will have 6 months from the date of the notice from the Minister to make a claim to the Garda Commissioner.
Application for Initial Assessment
The following may make an application for an initial assessment, that is
- a member or former member of An Garda Síochána, who were either injured or suffered death as a result of a malicious incident in the course of their duties or as a result of their duties, or
- a specified dependant of that member, in the case of the death of a member. It is intended to cover all persons who would previously have been eligible to make an application for compensation under the Garda Síochána (Compensation) Acts 1941 to 1945.
In the case of injuries, a member or former member may make a claim for compensation. In the case of a death, the dependants of the member or former member including a spouse or civil partner, a child or step-child, a parent or grandparent, or a brother, sister, half-brother or half-sister may make a claim for compensation, once they were wholly or partly dependent on the deceased person, and have suffered loss as a result of the death.
Where there is more than one dependant eligible to apply for compensation, one application only should be made which will be for the benefit of all dependants who are eligible. In such cases each dependant will receive a separate award according to their level of dependency to the deceased, as assessed by the Personal Injuries Assessment Board, or the court, as the case may be.
An application for an initial assessment is to be made to the Garda Commissioner unless the claimant is the Garda Commissioner. Where the Garda Commissioner is the claimant, the application should be made to the Minister for Justice.
Time limit for application for initial assessment
An application in respect of injuries not causing death must be made within 6 months of the date of the injuries being inflicted, or the date of knowledge of the injuries, whichever is later. Standard provisions in relation to the date of knowledge of the injuries apply.
An application in respect of injuries causing death must be made within 6 months of the death of a member, or a former member, as the case may be. The Garda Commissioner, may, if the circumstances are such that it is necessary to do so, extend the period for the making of an initial application and will inform the claimant in writing of his or her decision and the period of the extension. If the Garda Commissioner refuses to extend the time period for the making of an initial application, the claimant may apply to have this decision independently reviewed by a review officer to be appointed from a panel established by the Minister for Justice for those purposes.
The Minister for Justice prescribes, by way of regulation, the constituent parts of the application for an initial assessment, such as the application form, and relevant information and documentation that should accompany the application form.
A reporting officer is appointed by the Garda Commissioner. A reporting officer will carry out an initial assessment of the application to determine whether the injuries or death that are the subject of the application were the result of a malicious incident as defined in the Act.
A reporting officer should not be below the rank of Superintendent, or equal to or above the rank of Superintendent where a member of civilian staff of An Garda Síochána is appointed. This section also provides for the appointment of an alternative reporting officer where the first appointed reporting officer cannot perform his or her duties. A reporting officer may be assisted in their duties by a member or members of An Garda Síochána or the civilian staff of An Garda Síochána as deemed appropriate.
The preliminary examination is to determine whether the person or persons who have made an application for an initial assessment are eligible under the Act to do so. Where a reporting officer refuses the application on the grounds that the person or persons are not eligible, he or she must inform such person or persons of the refusal, and that an independent review of the refusal from a review officer can be sought under Part 4.
Where a reporting officer accepts the application has been made by a person or persons who are eligible under the Act, he or she shall proceed to prepare an initial assessment report and inform the claimant that such a report is being prepared.
Initial Assessment Determination
A reporting officer to complete an initial assessment report to determine whether the injuries or death that are the subject of the application were the result of a malicious incident as defined in the Act. The reporting officer shall consider the application form and all accompanying information and documentation submitted by the claimant. The reporting officer can seek any clarification, other information, or reports from a claimant if it is considered necessary for the purpose of the initial assessment. The claimant is obliged to provide any information requested by the reporting officer no later than 60 days from the date it is requested by the reporting officer.
The initial assessment report must be in writing and must include a determination as to whether the injuries that are the subject of the claim were the result of a malicious incident. The reporting officer must give reasons for his or her determination as well as any other relevant information. The reporting officer shall furnish the Garda Commissioner with a written copy of the initial assessment report within 4 months of his or her appointment.
Where the reporting officer is unable to provide the Commissioner with the report within the time limit, the reporting officer shall inform the claimant and the Commissioner of the reason why, and the date on which the report will be provided, which can be no more than two months after the original four month period expires.
Should a reporting officer fail to provide an assessment report within the statutory time limits, the reporting officer shall inform the Commissioner as such, and the determination will be that the injuries were the result of a malicious incident. The claim will then proceed for an assessment of quantum by the Personal Injuries Assessment Board.
Where the reporting officer determines that the injuries that are the subject of the claim were the result of a malicious incident and has notified the Garda Commissioner of his or her determination, the Garda Commissioner shall, within 30 days, make or cause to be made an application to the Personal Injuries Assessment Board on behalf of the claimant for an assessment of quantum.
Where the reporting officer determines that the injuries that are the subject of the claim were not the result of a malicious incident, the Garda Commissioner shall, within 30 days, send the initial assessment report to the claimant with a notice informing the claimant that he or she can apply for an independent review of the determination.
The Minister for Justice establishes a panel of review officers who will, in the event that a claimant does not accept a decision taken by a reporting officer, independently review that decision. A review officer will be either a practicing barrister or solicitor of not less than 5 years’ standing and will be appointed for a period of 3 years. Reviews officers will be independent in the performance of their duties.
A claimant may apply to the Garda Commissioner
for a review by a review officer of the following decisions:
- A refusal by the Garda Commissioner to extend the time limit for the
making of an application for initial assessment,
- A refusal by a reporting officer to carry out an initial assessment on the grounds that the claimant is not a person to whom the Act applies, or
- A determination by the reporting officer that the injuries that are the subject of the application were not inflicted as a result of a malicious
Specified procedures are to be applied by a review officer in carrying out a review of a decision taken by the Garda Commissioner or a reporting officer, as the case may be, and the time limits for same. The Minister for Justice, in consultation with the Garda Commissioner may establish procedures to be followed by a review officer in determining a review.
In considering an application for review, a review officer shall consider the reasons for the application, the application for review and accompanying documentation, any further information requested or submitted by a claimant or a reporting officer as well as any other information he or she considers relevant to the review.
A review officer must complete their review within three months of the date of his or her assignment. He or she may confirm or annul a decision taken by a reporting officer or the Garda Commissioner, as the case may be.
The Act sets out the criteria for the preparation of a report of the review undertaken. It details what should happen depending on the determination of the review. Where a review officer overturns a negative determination of a reporting officer, a copy of his or her report will be sent to the claimant, the reporting officer and the Garda Commissioner. The Garda Commissioner will then have 30 days to submit the application to the Personal Injuries Assessment Board on the claimant’s behalf.
The Garda Commissioner will pay costs incurred by the claimant as part of the Personal Injuries Assessment Board process, for example, the application fee and the assessment fee.
Certain modifications apply to the application of the Personal Injuries Assessment Board Act, to facilitate Garda compensation claims being dealt with under that Act. In particular these modifications allow for any reference to a ‘respondent’ to mean the Garda Commissioner in respect of Garda compensation claims, and to allow for the Garda Commissioner to make an application to the Personal Injuries Assessment Board on behalf of a claimant.
Proceedings on foot of PIAB Authorisation under Act of 2003
A claimant to bring proceedings against the Garda Commissioner on foot of an authorisation issued by the Personal Injuries Assessment Board under the Act of 2003. Proceedings are to be brought no later than 6 months from the issue of the authorisation under the 2003 Act by the Personal Injuries Assessment Board.
The court shall determine whether the injuries or death were caused as a result of a malicious incident, and will determine the level of compensation to be awarded on foot of the injuries or death, as the case may be.
The court shall have regard to when determining the level of compensation, such as, personal injuries guidelines adopted and published by the Judicial Council under the Judicial Council Act 2019, any medical or surgical expenses incurred or likely to be incurred by the claimant as a result of the injuries, and or any possible long-term effects of those injuries.
The proceedings are to be taken in the relevant court which has monetary jurisdiction to deal with the claim.
Proceedings brought against the Garda Commissioner are to be treated as though they were personal injuries actions, within the meaning of the Personal Injuries Assessment Board Act 2003 and the Civil Liability and Courts Act 2004. This means that provisions in relation to costs and procedural matters under those Acts will now apply to Garda Compensations claims in the same way that they apply to other personal injuries actions to which those Acts apply, subject to certain modifications as provided for under the Act.
The Statute of Limitations in respect of personal injuries actions does not apply to Garda compensation claims, as the Act sets out the specific time limits for each stage of the process, with a view to minimising the length of time it takes to award compensation under the Act.
There is a right for the Garda Commissioner to recover any losses incurred due to the personal injury or death of a member against any person or the estate of any such person who caused the personal injuries or death of the claimant.
Where a claimant knowingly provides false or misleading statements, written or oral, or knowingly furnishes false or misleading documents, in an application for an initial assessment, or in an application to the Personal Injuries Assessment Board for an assessment, an offence has been committed and the sanctions for committing such an offence are set out. Should a claimant provide false or misleading information to the Garda Commissioner in a request for an initial assessment, the Commissioner shall deem the application to be rejected, unless he or she considers such a rejection would constitute an injustice.
In cases where a court has delivered a conviction for providing false or misleading information, the court may order any compensation received by the claimant to be returned. On conviction for an offence above summary conviction,there is a class C fine or imprisonment for a term not exceeding 6 months, or to both, or on conviction on indictment, a fine not exceeding €15,000 or imprisonment for a term not exceeding 3 years, or to both..
Any award of compensation under this Act or under the Personal Injuries Assessment Board Act 2003 to be disregarded for the purposes of an income tax assessment under the Income Tax Acts.
The exclusion of any award of compensation under this Act, including by way of settlement, during the consideration of any pension, allowance, or gratuity payable in the event of a personal injury or death of a member resulting from the malicious incident that is the subject of the application for compensation under the Act.