A Cork Prison officer has lost a High Court challenge over whether 52 days of sick leave following an incident with a prisoner should have been treated as paid occupational-injury leave.
Gerald McCarthy was working at Cork Prison on 27 November 2006 when a prisoner threw liquid from a cell window, striking him and wetting his hair and clothes. Believing it to be urine or other bodily fluid, he sought medical attention.
McCarthy was described as agitated and was referred for infectious-disease testing. He was advised that the risk of contracting illnesses including HIV or Hepatitis C was low, and subsequent tests were negative. He remained on sick leave until 17 January 2007.
Because McCarthy was already on a prison service schedule under which further ordinary sick leave would be unpaid, he could receive pay only if his absence resulted from an occupational injury or disease within applicable circulars.
Prison authorities decided that the requirements of those circulars had not been met. His appeal to the Minister for Justice, Equality and Law Reform was rejected on 29 May 2007.
McCarthy did not begin judicial review proceedings until about 14 months later. He argued that he had spent the intervening period corresponding with officials, seeking fuller reasons and attempting to resolve the dispute without litigation.
Mr Justice McMahon held that this did not justify the delay. The officer had already received sufficient information by March 2007 to understand why his absence was not being accepted for paid occupational-injury leave, and the Minister's decision started the judicial review clock in May.
The judge said ongoing correspondence could not indefinitely extend statutory time limits, which serve the wider public interest in finality.
A separate argument based on an alleged assurance that McCarthy would be paid also failed for lack of satisfactory evidence. Although unnecessary to decide after the delay ruling, the court added that there was ample material supporting the administrative decision and that it could not be regarded as legally unreasonable.