51466 (10 August 2022)

Scheme of Compensation for Personal Injuries Criminally Inflicted

Decision of one member of the Tribunal pursuant to section 25 of the Scheme

Applicant: [ ]

Date of Injury: [ ]

Date of application: [ ]

Case reference: 51466

Decision: Pursuant to Paragraphs 21 and 11 of the Scheme which was in place at the time of the applicant’s application to the Tribunal, the application is refused.

1. [ ] (“the applicant”) has made a claim to the Criminal Injuries Compensation Tribunal (“the Tribunal”) for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (“the Scheme”).

2. The application form was signed by the applicant on [ ] and stamped as received by the Tribunal on the same day.

3. In his application form, the applicant stated that he was injured on [ ] during an armed robbery by an unknown person at his home at [ ]. The applicant stated that he suffered from post-traumatic stress, sleepless nights, and stress and nervousness at home. The applicant stated that he was absent from work as a [ ] from [ ] to [ ].

4. The applicant reported the matter to [ ] Garda Station the same day.

5. The applicant stated that his father had a heart attack following the events, and that his mother became very nervous in the family home, and required additional support from the applicant and his family. The applicant stated that his brother also left home, and as a result there was a decrease in family income into the home.

6. With respect to the delay in making an application to the Tribunal, the applicant stated that his mind was preoccupied at the time, and that he felt shaken, and was concerned about the health of his parents and brother.

7. The Tribunal has had the benefit of a Garda Report dated [ ] which stated that around [ ] on [ ], two males forced their way into the applicant’s home by smashing the door. One man was armed with a shotgun and the other was armed with a handgun. They demanded money, and two shots were discharged. One man was subsequently arrested and charged with aggravated burglary and firearm offences. This man pleaded guilty and was sentenced at the [ ] circuit criminal court. No compensation was paid to the applicant.

8. On [ ], the secretariat of the Tribunal wrote to the applicant to acknowledge receipt of his application. The applicant was alerted to the three-month deadline for the submission of applications to the Tribunal, and it was noted that the applicant had provided a reason for such delay in his application form which would be considered by the Member of the Tribunal when making a determination on his application.

9. On [ ], the secretariat of the Tribunal wrote to the applicant enclosing the Garda Report. The applicant was asked to submit receipts relating to any out-of-pocket expenses arising from his injuries, and evidence of loss of income. The applicant was also informed that, as of 1 April 1986, the Scheme prohibits the payment of compensation for pain and suffering in relation to incidents following that date, and that only compensation for vouched expenses could be paid.

10. On [ ], the secretariat of the Tribunal wrote to the applicant asking if the applicant wished to pursue his claim, and, if so to submit the documentation sought, including receipts to vouch his claim for compensation for out-of-pocket expenses. The applicant was informed that, in absence of same, his file would be sent to a Member of the Tribunal for determination.

11. No response to this letter is on file.

12. The following documents were furnished to the Tribunal Member for determination:

a. Completed application form;

b. Garda Report dated [ ];

c. Letter from secretariat of the Tribunal to applicant dated [ ] acknowledging receipt of the application form;

d. Letter from secretariat of the Tribunal to applicant dated [ ] seeking documentary evidence to support the applicant’s claim including original receipts of payments by the applicant as a result of his injuries;

e. Letter from Tribunal dated [ ] to the applicant asking the applicant to submit outstanding information, including original vouching documentation relating to out-of-pocket expenses and in absence of same, his file would be sent to a Member of the Tribunal for determination.

13. Arising from the foregoing, a number of issues arise which will be dealt with in turn.

14. Paragraph 21 of the scheme which was in place at the time of the application states:

"Applications should be made as soon as possible but, except in circumstances determined by the Tribunal to justify exceptional treatment, not later than three months after the event giving rise to the injury. In the case of an injury arising out of an event which took place before the commencement of the Scheme, the application must be made not later than three months from the date of the commencement (subject, also, to the foregoing exception)".

15. In his application, the applicant stated that he was injured on [ ], requiring him to make an application to the Tribunal before [ ]. However, the application form was not submitted to the Tribunal until [ ], significantly outside the required time for submission of the application.

16. Question 2(f) of the application form states: “If it is over three months from the date of incident to date of submission of application, please give reasons for delay as requires [sic] under Article 21 of the Scheme.” The applicant stated that he was stressed and anxious following the events and was very worried about the health of his brother and parents.

17. It is clear from the applicant’s application form that, by [ ], the applicant had returned to work as [ ].

18. There is no evidence before the Tribunal, such as medical reports or other evidence to explain why the applicant was unable to make a submission to the Tribunal within the requisite time period, or to instruct a solicitor to do so on his behalf until [ ].

19. There is no evidence before the Tribunal to suggest that there are any circumstances which warrant the granting of exceptional treatment in this case, and why the applicant’s claim should be admitted despite being outside of the required three-month time limit.

20. Therefore the application must be refused, pursuant to Paragraph 21 of the Scheme.

21. Paragraph 11 of the Scheme reads: “No compensation will be payable to an applicant who has not, in the opinion of the Tribunal, given the Tribunal all reasonable assistance, in relation to any medical report that it may require, and otherwise.”

22. In determining whether a lack of reasonable assistance has been given such that compensation is not payable, consideration must be given to the scope and purpose of Paragraph 11. It effectively cuts applicants off from compensation and is thus a far-reaching provision. Its purpose is to serve as a sanction against those who do not co-operate with the Tribunal – its secondary purpose is to encourage applicants to give the Tribunal reasonable assistance.

23. The Tribunal should not rely on paragraph 11 to deny an applicant the potential for compensation in an irrational or arbitrary way. It seems logical to take into account two main factors: (i) the nature of the information or assistance sought by the Tribunal (and in particular whether its absence prevents a proper decision being made) and (ii) the frequency of requests and time elapsed wherein no adequate response has been received by the Tribunal.

24. Without evidence of expenses actually incurred by the applicant as a result of his injury, there is no information upon which the Tribunal can base an assessment of compensation.

25. Original vouched medical expenses and other receipts relating to payment of out-of-pocket expenses arising from the applicant’s injuries are integral to the formation of any determination.

26. While the applicant stated that he was absent from work for a period of time following the armed break-in of his home, the applicant has not provided any details of his income or any employment-related benefits he received upon which an assessment of compensation for loss of earnings can be made.

27. The Tribunal finds that because of the integral nature of the documentation sought to the decision-making process, there is no information before the Tribunal to determine what out of pocket expenses were incurred by the applicant, and therefore the level of compensation which should be paid to the applicant.

28. Therefore applying Paragraph 11 of the Scheme, the application must be refused.

29. Pursuant to Paragraphs 21 and 11 of the Scheme which was in place at the time of the applicant’s application to the Tribunal, the application is refused.

Peter Stafford BL

10 August 2022