Publication
51744 (16 August 2022)
From Criminal Injuries Compensation Scheme
Published on
Last updated on
From Criminal Injuries Compensation Scheme
Published on
Last updated on
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: 51744
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 [ ].
3. In his application form, the applicant stated that he was injured on [ ] during an altercation in [ ] City when he was slashed with a knife leaving him with permanent scarring to his face. The applicant stated that he was absent from work as a [ ] for 14 days from the date of the incident.
4. The applicant stated that he had been treated in [ ] Hospital and, at the time of his application, was continuing treatment as an outpatient.
5. The applicant stated that he reported the incident to [ ] Garda Station on the day of the assault.
6. With respect to the delay in making an application to the Tribunal, the applicant stated that he had been told that he had to wait until the criminal case against his assailants had been completed before he could submit an application to the Tribunal and had done so immediately on being informed that this was not the case.
7. The applicant claims compensation for travel expenses to outpatient’s appointments, and attendance at psychotherapy sessions, as well as compensation for loss of earnings.
8. The Tribunal has had the benefit of a Garda Report dated [ ] which stated that the applicant was approached on [ ] on [ ] at approximately [ ] by a group of [ ]. An altercation took place between the applicant and the [ ], resulting in the applicant receiving a severe cut to his face with a knife, and a minor cut to his neck, also with a knife.
9. The Garda Report stated that the applicant had, at the time of the report, one conviction for Section 6 of the Public Order Act.
10. On [ ], the secretariat of the Tribunal wrote to the applicant seeking copies of his medical expenses and other vouching documentation relating to out-of-pocket expenses. The applicant was also asked to confirm receipt of any social protection benefits which were paid to him during his absence from work, and to confirm his net loss during that period.
11. On [ ], a copy of the letter of [ ] was sent to the applicant who was informed that the Scheme does not cover compensation in respect of pain and suffering.
12. On [ ] the applicant wrote to the secretariat of the Tribunal enclosing his medical records and a letter from his employer stated that the applicant was absent from work for 14 days post-incident and that his gross salary for those 14 days amounted to €1,281.65. The applicant also provided further information on the previous conviction as mentioned in the Garda Report.
13. On [ ], the Secretary to the Tribunal wrote to the applicant noting that the Tribunal Member who had considered his application sought additional information in order to allow a decision to proceed in this case. Specifically, the applicant was asked to provide a statement explaining how the altercation occurred which gave rise to his injuries and a copy of his statement to Gardai in this matter. Second, the applicant was asked to provide details of the outcome of the criminal proceedings in this case, and third, the applicant was asked to provide details of his net loss of earnings for the period when he was absent from work.
14. 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.
15. No response to this letter, or the letter of [ ], is on file.
16. 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, and inviting explanation for delay in submitting application;
d. Letter from applicant dated [ ] proving further information on his previous criminal conviction, and enclosing:
i. Hospital records;
ii. Letter from [ ] Limited relating to loss of earnings;
e. Letter from secretariat of the Tribunal to applicant dated [ ] seeking documentary evidence to support the applicant’s claim including further details of his medical treatment and prognosis, original receipts of payments by the applicant as a result of his injuries, social welfare payment details and net loss of earnings;
f. Letter from secretariat to the applicant dated [ ] enclosing letter of [ ];
g. Preliminary decision of Member of the Tribunal dated [ ] seeking further particulars of the circumstances of the injury, details of net loss of earning and outcome of criminal proceedings;
h. Letter from Tribunal dated [ ] seeking particulars listed above;
i. 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.
17. Arising from the foregoing, a number of issues arise which will be dealt with in turn.
18. 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)".
19. 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.
20. 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 had been informed that he should await the outcome of any criminal proceedings against his assailant before making an application, and submitted his application immediately on learning this was not so.
21. It is clear from the applicant’s application form that, by the end of [ ], the applicant had returned to work. It is also clear that he had made a statement to Gardai immediately on being assaulted.
22. There is no evidence before the Tribunal to suggest that the applicant was not able to make an application within the required time period, or to instruct a solicitor to do so on his behalf. It is not considered that ignorance of the Tribunal’s rules regarding the time period for the submission of an application to the Tribunal amounts to circumstances which warrant the granting of exceptional treatment.
23. 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.
24. Therefore the application must be refused, pursuant to Paragraph 21 of the Scheme.
25. 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.”
26. 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.
27. 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.
28. 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.
29. The applicant was asked to provide a statement explaining how the altercation occurred which gave rise to his injuries and a copy of his statement to Gardai in this matter. Second, the applicant was asked to provide details of the outcome of the criminal proceedings in this case, and third, the applicant was asked to provide details of his net loss of earnings for the period when he was absent from work.
30. While the applicant stated that he was absent from work for a period of time following the assault, the applicant has not provided any details of any employment-related benefits he received upon which an assessment of compensation for loss of earnings can be made.
31. The applicant also did not provide the other information sought by the Tribunal.
32. The applicant was asked on a number of occasions by the Secretariat of the Tribunal to inform the Tribunal of his net loss of earnings, having regard to any social welfare payments received. However, no such information was provided by the applicant.
33. 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 loss of earnings were incurred by the applicant, and therefore the level of compensation which should be paid to the applicant.
34. Therefore applying Paragraph 11 of the Scheme, the application must be refused.
35. 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
16 August 2022