Publication
53793 (29 March 2023)
From Criminal Injuries Compensation Scheme
Published on
Last updated on
From Criminal Injuries Compensation Scheme
Published on
Last updated on
The Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted
Applicant: [ ]
Reference: 53793
Date of incident: [ ]
Date of application: [ ]
Appeal hearing (held by way of remote hearing on [ ] the [ ])
Present:
For the Tribunal:
For the Applicant/Appellant:
This matter came before the Tribunal on the [ ] by way of appeal from a single member’s decision, arrived at on [ ]. The Tribunal considered the case afresh (or de novo), taking into account the papers submitted on behalf of the applicant, his oral evidence and submissions. The appeal commenced at 11.30am by way of virtual hearing. The applicant agreed to a have the hearing held remotely.
The Tribunal had the benefit of the Appeal Hearing Booklet, pages 1-84.
The applicant was not required to prove that he was the victim of a crime of violence. At the outset of the hearing, the Tribunal advised the applicant that it accepted that he had been the blameless victim of a crime of violence.
The applicant gave evidence that he was assaulted by an unknown male assailant (“offender”) in [ ] on [ ], while waiting for their bus back to [ ] after a night out socialising with his friends. It is also noted that a number of the applicant’s friends were also assaulted by the offender and another male assailant.
The matter was reported to the Gardai. The Garda report reveals that the offender was subsequently identified on CCTV and prosecuted with [ ] counts of assault under s 2 and s 3 of the Non-Fatal Offences Against the Person Act, 1997. It is noted that the other male accompanying the offender was also prosecuted on multiple counts of assault.
The applicant (and his friends), who were minding their own business, knew they were danger when they were approached by the offender and another male assailant on two occasions. Unfortunately, despite their best attempts not to engage the offender and the other male assailant, the applicant and his friends were physically attacked. The applicant tried to prevent his female friends from being attacked. The offender punched him in the face. The applicant fell to the ground and while the applicant was trying to protect himself from more blows, he turned his body around and put his feet in the air. He was kicked by the offender and sustained an injury to his right foot.
The applicant was relayed to hospital by ambulance. X-rays revealed that he sustained a non-displaced fractured of the fifth metatarsal of his right foot. The applicant’s foot was swollen, and it was not possible to put a plaster of paris on his foot. He was discharged with crutches. He attended the fracture clinic in [ ] two or three days later. His foot was placed in a plaster cast. The applicant was required to wear a plaster cast for a period of eight weeks.
The Applicant works in [ ] Limited (“[ ]”) in [ ] as a [ ]. The applicant was unable to work in [ ] from the [ ] until the [ ] as his work required him to be on his feet for up to 12 hours per shift. Unfortunately, the applicant was not a member of the sick pay scheme in [ ] and he had to take unpaid sick leave. The applicant claims that he sustained eight weeks loss of earnings during the foregoing period. The applicant has produced a P60 for [ ], together with a letter from [ ] dated [ ] outlining that the gross earnings minus overtime payments would have amounted to €4,351.91. The applicant has also produced details of his [ ] earnings and overtime payments from [ ], which when averaged (up to the date of the incident) amounted to a net loss of €5,176.40 for the relevant period he was unable to work.
The applicant also owns and runs a farm on a part-time basis. The applicant has been running this farm on a part-time basis and on his own since [ ]. The applicant attempted to try and tend to his farm for the first few days, but was unable to do very much as he was not able to get around on uneven ground on crutches. He was also unable to operate machinery. He required the assistance of [ ], a neighbour and contractor, to carry out these necessary activities. The applicant has provided the Tribunal with the following invoices together with credible evidence as to why he needed to incur each and every one of these expenses:
The applicant also gave evidence that he has not received any statutory sick payments in either [ ] or [ ].
The applicant also gave evidence that two of these female friends applied to the Criminal Injuries Compensation Tribunal at the same time as his application and received awards from the Tribunal at first instance. The Members of the Tribunal hearing this matter, have not examined these applications, or the reasons why these awards were made and the reasons as to why the late applications were accepted by the single member(s) deciding these applications. However, it is accepted, as alleged by the applicant, that awards were made in these matters.
The applicant’s application form was received by the Tribunal on the [ ], almost seven and a half months after the date of the incident. Paragraph 21 of the applicable pre-2021 Scheme (“the Scheme”) states that “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.” Accordingly, the application form was lodged almost three and a half months outside the stipulated time limit.
The applicant gave evidence that he consulted with his solicitor in [ ]. He was advised by his solicitor and by the Gardai about the existence of the Tribunal and at that juncture provided instructions to his solicitor to pursue an application on his behalf. It was believed that a written application would need to be supported by the name of the offender, which was initially unknown to the applicant, together with a copy of any Garda Statements to progress a written application. The applicant’s solicitors attempted to procure this information from the Gardai. Proof of the correspondence evidencing the applicant solicitor’s interaction with the Gardai requesting this information has duly been provided to the Tribunal. The applicant’s written application was submitted to the Tribunal immediately after the applicant uncovered the foregoing information from the Gardai.
The applicant also gave evidence that he was initially able to progress parts of the application over the phone and by posting documents or by giving them to his friends who were also pursuing applications through the same firm of solicitors. However, he was unable to make the forty-minute drive to [ ] to hold substantive consultations with his solicitor.
The applicant appeared to be affected psychologically by the effects of the assault and gave evidence that he still remembers the event vividly. It knocked his confidence. He never returned to [ ] to socialise after the incident.
Counsel provided detailed submissions that the above combination of events impeded the applicant submitting the application form within the stipulated three-month time limit. Counsel also submitted that there should be parity as between awards, in circumstances where the applicant’s two friends had received awards from the Tribunal arising out of the same incident, and in circumstances where these applications were lodged at the same juncture as the applicant’s claim and outside the three-month time limit. Counsel also submitted that in some previous published decisions of the Tribunal, revealed that the Tribunal had previously accepted that delays in obtaining Garda Reports, had in some matters, been deemed to be circumstance which justified exceptional treatment, with the result that the late applications had been accepted into the Scheme.
The Tribunal has carefully considered the recent decisions of the Superior Courts in Bowes -v- The Criminal Injuries Compensation Tribunal & Ors; Brophy -v- The Criminal Injuries Compensation Tribunal & Ors [2022} IEHC 703 and in J.McE -v- The Residential Institutions Redress Board [2016] IEHC, all of which advocate a relevant decision making body, when dealing with a Scheme of compensation that is remedial in nature, should apply a broad and liberal interpretation when considering if the applicant had demonstrated circumstances that are such that could be determined to justify exceptional treatment.
In McE, Hogan J when considering the provisions applicable to late applications under the Residential Institutions Redress Act, 2002 stated at paragraph 38 that :
“ Summing up, therefore, I am of the view that s. 8(2) of the 2002 Act should be given a broad and liberal interpretation as befits a remedial statute of this kind. This means that an applicant seeking an extension of time need only demonstrate the existence of exceptional circumstances simpliciter, with the standard of exceptionality measured by reference to contemporary standards prevailing within the general public, as distinct from the more limited class of persons who might have applied under the 2002 Act. It is not necessary for the applicant to go further and show that such circumstances impeded or prevented him or her from making an application to the Board within the original three year period or that such circumstances contributed to a lack of knowledge regarding the existence of either the redress scheme or the Board itself”.#
In Bowes and Brophy , Holland J approving the foregoing dicta of Hogan J in McE, found that the Criminal Injuries Compensation Scheme is remedial in nature. He also held at paragraph 75 (when analysing the threshold test required to prove that the circumstances justify exceptional treatment) :
“the necessity of demonstrating an arguable case is a low bar”.
The exercise in evaluating whether the circumstances surrounding a late application justify exceptional treatment requires a detailed evaluation of the circumstances put forward and factors involved, with each case being determined on its own merits having regard to its own unique and specific set of facts.
It is clear in this matter that the applicant formed an intention to pursue an application to the Scheme in [ ]. He instructed solicitors to progress the application without delay. However, for the avoidance of doubt, there is no necessity to instruct or rely on intermediaries to progress applications. If an intermediary makes a mistake as to the application process or to the terms and provisions of the Scheme, this is not a reason of itself that would be determined by the Tribunal to justify exceptional treatment.
It is accepted that the delay in making the written application arose because the applicant and his solicitor were waiting for details from the Gardai. For the avoidance of doubt, there is no necessity to provide a copy of the Garda Statement or the name of the offender with the written application. If to hand, the statement and name of the offender can be provided. However, frequently, statements and comprehensive information are not made available to an applicant by the Gardai within the 3-month time limit. If the statement is not available or the name of an offender is not known, the written application should be lodged with the Tribunal to ensure compliance with the time limit, and foregoing can then be provided when available.
While it is acknowledged that the applicant was significantly discommoded in consulting in person with his solicitor for a period of eight weeks, the application could arguably have been progressed by the phone or through the post. The applicant also had the benefit of a full month after he physically recovered to progress his application. Hence, this is not a reason of itself that would be determined by the Tribunal to justify exceptional treatment.
The Tribunal accepts that the applicant suffered psychologically as a consequence of the assault. Despite the Tribunal not being provided with any medical evidence, it was quite clear from the applicant’s evidence that the assault and its aftermath took a psychological toll on him. He went from being very busy individual working long hours in two jobs, to being able to do very little, which of course must also have adversely affected his mental health. He never returned to socialising in [ ] since the date of the accident.
None of the forgoing factors taken by themselves would generally be determined by the Tribunal to justify exceptional treatment. However, the Tribunal having regard to the remedial nature of the Scheme and the decisions of the Superior Courts in McE, Bowes and Brophy accepts that the forgoing factors when taken cumulatively explain why the applicant failed to make the application within the requisite three-month period. These reasons when taken cumulatively satisfy the threshold test advocated by Holland J in Bowes and Brophy.
It would also be unfair and unjust not to make an award to the applicant in circumstances where the applicants two friends made successful claims to the Tribunal regarding the same incident, where they also lodged application forms late and at the same time as the applicant.
For the forgoing reasons, the Tribunal finds that this application justifies exceptional treatment and admits this application to the Scheme.
The Tribunal was impressed by the applicant’s evidence and finds that he presented his evidence in a credible and entirely truthful manner. The Tribunal fully accepts the applicant’s evidence that he incurred the loss of earnings with [ ] (including overtime payments) of €5,176.40. The Tribunal will make an award for the full amount of €5,176.40.
The Tribunal also awards the applicant the full costs incurred in respect of the work that needed to be carried out on his farm by [ ] in the sum of £156, and [ ] in the total sum of £3680 (£800 + £2880). The conversation of £3,836 sterling, as of the [ ] (using XE.com Currency Convertor) amounts to €4,370.
Therefore, the applicant is awarded the total sum of €9,546.40.
Mr David Culleton, Solicitor, Member of the Criminal Injuries Compensation Tribunal
Ms Patricia Sheehy Skeffington, B.L., Member of the Criminal Injuries Compensation Tribunal
Ms Elizabeth Davey, B.L., Member of the Criminal Injuries Compensation Tribunal
29 March 2023