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Gray v Commissioner Of An Garda Siochana (Approved)
Factual and Procedural Background
The Plaintiff, a serving member of the Garda Service, sought compensation under section 23 of the Garda Síochána (Compensation) Act 2022 for injuries arising from a malicious incident on 17 February 2021. While on duty conducting a bail check, the Plaintiff was violently assaulted for approximately ten minutes by an assailant who was later convicted and sentenced to three years’ imprisonment. [1][2][3][4]
The Plaintiff sustained psychological injuries, lower-back and referred leg pain, shoulder symptoms, and temporary bites, scratches, bruising and soreness. He was absent from work for approximately one year and subsequently returned to normal duties on a phased basis. [5][6][7][8][9]
At trial, the Defendant required proof of the pleaded injuries and losses but did not plead failure to mitigate. Special damages to date were agreed, leaving the assessment of general damages and future special damages for determination. [10][11]
Legal Issues Presented
- What amount of general damages should be awarded for the Plaintiff’s psychological, back, shoulder and minor injuries under the statutory and guideline framework? [11][12][13]
- Whether the Defendant could rely on an alleged failure to mitigate loss when that issue had not been pleaded or notified before trial. [14][15][16]
- What amount, if any, should be awarded for future special damages, including further counselling? [17]
Arguments of the Parties
Plaintiff’s Arguments
- The Plaintiff submitted that the psychological injury fell within the serious PTSD bracket and should be valued at €60,000. [18][19]
- He submitted that the back injury fell within the higher sub-bracket for moderate back injuries, with disc and nerve involvement. [20]
- He submitted that the shoulder injury warranted €20,000 and that the minor injuries warranted €5,000. [21][22]
- He objected to the mitigation issue because it had not been pleaded or notified, and stated that further information about the employee-assistance scheme and his financial circumstances would have been available had proper notice been given. [23][24]
Defendant’s Arguments
- The Defendant submitted that the psychological injury fell within the moderate PTSD bracket and should be valued at €20,000 because of alleged failure to mitigate. [19]
- The Defendant submitted that the back injury fell within the lower sub-bracket for moderate back injuries. [20]
- The Defendant submitted that the shoulder injury was a minor injury valued between €6,000 and €12,000, and that damages for the additional minor injuries should be insubstantial. [21][22]
- The Defendant argued that a person suffering serious PTSD would generally receive counselling, and relied on the Plaintiff’s discontinuation of medication and counselling. [25][26]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Calix v. AG of Trinidad and Tobago [2013] 1 W.L.R. 3283 | A defendant alleging failure to mitigate should give clear and timely notice. | The Court endorsed this approach and held that the mitigation issue could not first be raised in cross-examination. [27][16] |
| Geest plc v. Lansiquot (St Lucia) [2002] 1 W.L.R. 3111 | Notice of an alleged failure to mitigate should be given sufficiently before the hearing. | The Court applied the principle because the Plaintiff received no such notice. [27][16] |
| Molloy v. Tipperary Glass Ltd [2022] IEHC 263 | Failure to mitigate should be expressly pleaded or, at minimum, raised in correspondence before trial. | The Court agreed with this approach and rejected the Defendant’s attempt to raise the issue for the first time at trial. [28][16] |
| Corless v. HSE [2023] IEHC 622 | The Court considered arguments concerning pleading and alleged failure to take steps to return to work. | The Court treated the relevant statement as inconsistent with the approach in Molloy and characterised it as obiter to that extent. [29][16] |
| Buckley v. Linehan [2025] IEHC 101 | Failure to mitigate was rejected where refusal of treatment was not unreasonable. | The Court distinguished the present case from a clear refusal of treatment likely to provide dramatic benefit. [30] |
| Zaganczyk v. John Pettit Wexford Unlimited Company and Another [2023] IECA 223 | An overall award must fairly compensate all the Plaintiff’s suffering. | The Court applied the requirement to assess the injuries holistically and proportionately. [31] |
| Collins v. Parm and Others [2024] IECA 150 | The court must have regard to the values assigned to each injury while avoiding overcompensation. | The Court used this principle in assessing each injury and discounting for overlap. [31][32] |
| Meehan v. Shawcove [2022] IECA 208 | The court should take an holistic view of the particular constellation and cumulative effect of injuries. | The Court adopted this approach in determining the overall award. [31][32] |
| Lipinski (a Minor) v. Whelan [2022] IEHC 452, [2023] 3 I.R. 243 | The approach to holistic and proportionate assessment of multiple injuries. | The approach was referred to with approval in Zaganczyk and considered within the Court’s damages analysis. [31] |
| Delaney v. The Personal Injuries Board and Others [2024] IESC 10, [2024] 1 I.L.R.M. 149 | The court may, and must, depart from the Guidelines where applying them would produce an unjust award. | The Court relied on the principle that fairness and proportionality govern the assessment. [33][13] |
| Somers v. Commissioner of An Garda Síochána [2025] IEHC 388 | A comparator concerning PTSD suffered by an on-duty Garda member. | The Court found the Plaintiff’s psychological injury more extensive than in Somers and placed it closer to the serious PTSD bracket. [34][35] |
Court's Reasoning and Analysis
The Court held that the Defendant could not raise failure to mitigate for the first time in cross-examination because the issue had not been pleaded or notified. [14][16]
In any event, the Defendant bore the burden of proving failure to mitigate. The evidence did not establish that discontinuing medication or not obtaining further counselling was unreasonable. The medical evidence did not criticise those decisions, and the Plaintiff’s financial evidence was insufficiently contradicted to reject his explanation that he could not afford private counselling. [36][37][38][39][40]
The Court assessed each injury by reference to the Personal Injury Guidelines, while applying fairness and proportionality. It did not simply add the individual valuations, because the injuries arose from one incident and their effects overlapped. [12][41][42][32][43]
The psychological injury was assessed at €45,000. The Court found moderate-to-severe PTSD, panic anxiety and low mood during the first year, followed by continuing PTSD and significant anxiety more than five years after the incident. Although improvement was expected and the Plaintiff remained able to work, he had not largely recovered. [44][35][45]
The back injury was assessed at €40,000. The Court accepted that the assault caused residual back pain with disc and nerve involvement, despite improvement and the absence of a need for surgery. [46][47]
The shoulder injury was assessed at €16,000 because symptoms remained ongoing but were less severe than those ordinarily associated with a frozen shoulder or permanent intrusive symptoms. [21][48]
No separate award was made for the knees or legs: referred leg pain was included within the back injury, while knee trauma was included within the minor injuries. The bites, scratches, bruising and other temporary injuries were valued at €5,000. [49][50][51][52]
The individual valuations totalled €106,000. The Court applied a €20,000 discount for overlapping effects and awarded €86,000 in general damages as fair and proportionate. [53][54]
Special damages of €3,813 to date had been agreed. A further €1,000 was awarded for future counselling recommended by the medical evidence. [55][17]
Holding and Implications
Judgment was entered for the Plaintiff in the sum of €90,813. This comprised €86,000 general damages and €4,813 special damages arising from the incident. [56]
The direct consequence was an award of compensation to the Plaintiff, with no reduction for alleged failure to mitigate. The opinion does not state that any new precedent was established. [16][57][56]
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