High Court: Former member of An Garda Síochána awarded €50,000 for assault on duty

About this case:

• Judgment:
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Sitting in the High Court, Mr Justice Bernard Barton was satisfied that the medical evidence submitted on behalf of the applicant showed that ongoing symptoms were caused by the assault.

Background

In June 2003, Ms Edel Dore, 39, was assaulted by a woman whom she was attempting to arrest in Dublin. She suffered damage to her left arm and shoulder, and the development of a numbness / parasthesia sensation throughout her left arm and into the fingers of her left hand, prevented Ms Dore from being able to return to work; she was certified unfit by her GP and was only able to return to light duties after an absence of eight months.

Her symptoms had persisted for longer than had been anticipated, and the Court heard that several rehabilitation modalities were followed by Ms Dore, including a course of physiotherapy.

Ms Dore continued to experience painful symptoms in her left shoulder and neck, and was unable to return to full duties until November 2004 (with the assistance of pain killing medication).

Prior to the accident Ms Dore was very physically fit and a keen swimmer; she had been a life guard in her spare time and although she tried to return to swimming as part of her rehabilitation programme she had had to give that up as it tended to provoke symptoms in her shoulder.

Ms Dore was assigned to office based duties between 2006 and 2010 and got on with her life as best she could.

While her symptoms had remained relatively quiescent, she continued to experience episodic flare ups for which she was further investigated in 2008 and 2009; in the Summer of that year she experienced a sudden onset of excruciating pain in her neck and left shoulder the severity of which prevented her from continuing a journey to go on holiday.

Ultimately, Ms Dore’s career as a member of An Garda Síochána was brought to an end following an incident in October 2013 when in the course of assisting an arrest, she sustained very serious injuries for which she had several surgeries.

Medical reports

In 2007, Ms Dore was referred to Professor Trevor Duffy, Consultant Rheumatologist because of continuing problems in her shoulder, who then referred Ms Dore to Mr John Lunn, Consultant Orthopaedic Surgeon at the Hermitage Medical Clinic, Lucan – both prepared medical reports which were considered by the court.

Justice Barton explained that the sequelae of the injuries the subject matter of the present proceedings were intermittent and low grade; however, there was an issue between the parties in relation to causation of the ongoing symptoms and the acute exacerbation in 2009: The MRI arthrogram carried out in May 2008 reported some changes already mentioned but did not identify a pronounced subchromial bursitis which Mr. Lunn found when he carried out the shoulder arthroscopy in May 2009.

Dr Pat O’Neill gave evidence and prepared medical reports which were admitted on behalf of the Minister for Finance. He accepted that Ms Dore had sustained a complex soft tissue injury involving her neck and left shoulder, however, in his opinion it was significant that the MRI of the left shoulder taken in May 2008 disclosed no identifiable subachromial bursitis.

High Court

There was no suggestion that Ms Dore was anything other than a truthful witness, and it was common case that Ms Dore suffered complex injuries in respect of which she is entitled to compensation, was not in issue.

After the acute phase of the injuries, Ms Dore’s evidence was that she did not make a full recovery but continued to suffer from intermittent and low grade symptoms culminating in the acute episode of 2009.

Justice Barton stated that he accepted this evidence.

The kernel of the controversy between the parties is concerned with the cause of the condition and symptoms for which Ms Dore was investigated in 2007/2008/ by Professor Duffy in 2008 treated by Mr Lunn in 2009. The Court is tasked with resolving that issue; the onus of proof lies with Ms Dore: both parties led expert medical evidence.

Justice Barton stated: “Where the outcome on such an issue was dependent upon the reconciliation or resolution of a difference of opinion between respected medical experts given in evidence on matters of medical fact and one or more of the experts have provided professional advice or therapeutic treatment to the claimant, the Court is entitled to have regard to the duty of care owed and the professional responsibility involved in the provision of such services consequent upon that relationship as the basis or ground upon which to prefer the opinion of such experts and is warranted in so proceeding, particularly where the expert has a special professional interest and expertise in the matter at issue, unless there is compelling evidence or other good and sufficient reason to do otherwise”.

He continued, “…Mr Lunn professes a special interest and expertise in shoulder surgery; in performing the arthroscopy he afforded advice and therapeutic treatment to Ms Dore over which he must stand and for which he is responsible. While acknowledging the undoubted expertise and respected opinion of Dr O’Neill… I prefer the evidence and opinion of Mr Lunn on the issue; accordingly, the Court finds as a matter of probability that the symptoms and condition for which Ms Dore was subsequently investigated and treated was caused by the assault”.

In all the circumstances, the Court awarded Ms Dore €50,000 for pain and suffering to date and into the future.