Publication
54794 (24 November 2022)
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
First Instance Decision of a Three-Member Panel
Name of applicant: [ ]
Application number: 54794
Date of incident: [ ]
Date of application: [ ]
Decision outcome: The applicant is awarded the sum of €302,256.14 under the Scheme.
1. [ ] (‘the applicant’) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’).
2. In his application for compensation under the Scheme, dated [ ], the applicant stated that on [ ] he suffered injuries when he was seriously assaulted outside [ ] in [ ] [ ]. According the garda report the [ ] sustained a skull fracture and associated dural haematoma causing a life-threatening mass effect on his brain. He underwent surgery and was release from hospital on [ ]. Medical reports indicate that he suffered an acquired brain injury as a result of the assault.
3. The applicant’s assailant pleaded guilty to assault and was given a suspended [ ] sentence. He underwent surgery and was release from hospital on sentence. He was required to pay the applicant €[ ] to the applicant; on the date of the application’s submission he had paid €3,250.
4. The normal time limit to make an application is 3 months following the incident that gave rise to the application, per para 22 Scheme. Exceptionally, if the Tribunal find that the circumstances warrant it, this time period can be extended.
5. In this case, the applicant was a minor at the time of the incident on [ ]. He turned 18 on [ ]. The Tribunal considers [ ] the appropriate time from which time should run. In normal course his application should have been received on or before [ ]. It was instead received on [ ].
6. Very soon after his initial treatment for his injuries the applicant left Ireland to return home to [ ]. He had a severe head injury on him as a consequence of an assault. The Tribunal is of the view that both the applicant’s injury and his being outside Ireland impacted his ability to find out about the Scheme. It notes however that when he did (in [ ]) he acted quickly to make the application.
7. The Tribunal finds these to be circumstances which warrant the exceptional treatment of allowing the case to be considered outside the 3-month timeframe.
8. The Tribunal has seen the garda report and notes that the applicant’s assailant was convicted of the assault on the applicant. In the circumstances the applicant has established, on the balance of probabilities, that he was a victim of a crime of violence and sustained personal injury which is directly attributable to that crime of violence. Accordingly, his application is admitted for consideration under the Scheme.
9. The applicant will note that the assessment of damages below relate to monetary losses which can be directly related back to the injury suffered as a consequence of the assault on [ ]. The Tribunal has noted that the applicant has supplied evidence in respect of the emotional distress he suffered, and it recognises that the incident had a wider impact on the applicant’s life than purely financial loss. However, the Tribunal has no power to award damages for these broader impacts on the applicant. Indeed it is expressly precluded from doing so under paragraph 6(e) of the Scheme. Though it can make no monetary award, the Tribunal wishes to acknowledge that the applicant was caused real distress as a consequence of the criminal injury inflicted on him on [ ].
10. As a consequence of the assault, the applicant required surgery and inpatient treatment until [ ]. His parents flew to [ ] to be with their son; the family flew home to [ ] later that month. The applicant has had ongoing neurological treatment and symptoms.
11. In particular the applicant stated on his application form that he suffered from memory and concentration issues, apathy and cognitive problems. He suffered insomnia and has trouble studying.
12. There is a medical report of Dr [ ] on file, which is based on an examination of the applicant of [ ] and a range of medical reports from both [ ] and [ ] health care facilities. This states that after initial examination at the hospital on [ ] (the date of the incident) the applicant was discharged but returned with worsening headaches and vomiting three days later. A CT scan was performed which found an epidural haematoma with a slightly depressed associated comminuted fracture of the left parietal bone with a displacement associated with the middle line. Surgery was performed and he was discharged on [ ], whereupon he returned home to [ ] where he received ongoing treatment. Dr [ ] cited a psychological assessment of [ ] which reads:
"The assessment data show recovery to the previous level for comprehension and verbal expression, learning, memory and abstract reasoning. We have detected a slight impact on information processing speed, in attention flexibility and visuospatial working memory; during the examination a progressive recovery in those areas is detected but at the time of its completion there was no achievement of the estimated previous levels".
13. Dr [ ] records that the applicant in [ ] the psychological services recorded that the applicant was maintaining a ‘good evolution’ but would benefit from neuropsychological intervention. This led to his attendance at the [ ] in [ ].
14. As to the applicant’s history, the doctor notes that at the time of the incident the applicant was working and studying in Ireland. His future aim was to study for a degree in [ ]. However since the incident and his return to studies he has not been able to resume his studies and in particular the gateway exams for university. He started a vocational course in [ ] in [ ] but his academic performance was poor; he restarted the same course in [ ] and completed the first year with assistance from his family. He was currently completing the second year of this at the time of Dr [ ] report. Essentially due to the applicant’s cognitive behavioural difficulties acquired as a result of his brain injury he has downgraded his academic ambition.
15. Dr [ ] assessment was that the applicant would require neurospsychological intervention for life. He also assessed him as having developed [ ] Syndrome as a result of the incident. This, in Dr [ ] view, impacted significantly on the applicant’s educational expectations. In particular it was Dr [ ] view that the [ ] caused substantial losses in [ ] future job opportunities, since it limits his abilities to those activities which require less of an intellectual performance. According to the International Labour Offices Standardized Classification of Occupations, [ ] fitness for work would remain limited to primary activities, some [activities] in the service sector or technicians with less intellectual demand or other non-qualified occupations”.
16. Dr [ ] report, a report of the [ ] in [ ] and official statistics from the [ ] Office of Official Statistics on salary remuneration were assessed by two acturaries, Ms [ ] and Mr [ ], who are members of the [ ] Actuaries.
17. The assumptions underlying the report were survival probability and investment return. From this technical basis the actuaries took a baseline of the present value of future expenses on the €1,080 per annum with the [ ] in [ ] as multiplying out to €47,836.14. The Tribunal accept that this is an expense incurred directly as a consequence of the injuries criminally inflicted on the applicant.
18. The actuaries also considered loss of earnings, using the same technical basis as above and on the basis of a wage differential between the monthly wages commanded by professional-oriented second stage secondary education and a person who had completed higher education. They found the difference to be €987.70 on a monthly basis, or €13,827 per year, which they then applied to the period between when education would have been expected to be complete (when the applicant was 22 years old) and his retirement at 67. The sum the actuaries calculated using this method was €453,885.29, which includes uplift for salary increases at 1.5% per annum. Upon clarification as to whether the sum given was gross or net of tax, the actuaries stated that it was gross. Net of tax the figure amounted to €326,345.88.
19. The Tribunal accepts the basis of the actuaries’ calculation for loss of earnings. However, Irish law provides that loss of future earnings should also take into account the likelihood that a person will often not work the full period from qualification to retirement. A person may have periods of unemployment, take early retirement, change career, have an accident or a experience a variety of other life events which may prevent full employment for the whole duration of a working life. Therefore a deduction is made from the headline loss of earnings figure: Reddy v Bates [1983] IR 141.
20. In this case the Tribunal notes that the applicant’s period of potential work life is 45 years. This is a long time in which many eventualities can occur. The Tribunal therefore deems an appropriate deduction to be 25%. This is at the higher scale of deductions, reflecting the increased vagaries of what might occur during the span of a long working life. The total the Tribunal awards for loss of earnings is therefore €244,759.
21. The application form also states that the applicant lost out financially due the cost of courses he had paid for in Ireland but could not complete, and generally as a consequence of his inability to study due to his acquired brain injury. He submitted invoices for an intensive English language course for the [ ] academic year. It was in the sum of €17,450. The Tribunal finds that €8,725 should be awarded, reflecting that the applicant was able to avail of approximately half of the English language course.
22. Also is also included on the file are various receipts for treatments, consultations and assessments. There is also a fee for the actuarial report which was required to inform this decision. The Tribunal accept that these are necessary expenses that should be covered by the compensation due to the applicant. The Tribunal therefore allowed the costs of membership of an acquired brain injury association (€435); translation services (€726); Actuarial reports €1,815 and €1,210.
23. The extent of allowable expenses and losses as assessed by the Tribunal is therefore €305,506.14. However, the Tribunal notes that the applicant has been paid €3,250 in compensation by his assailant. The Scheme requires that any compensation paid by an offender to the victim of a crime is deducted from any award made (Para 15).
24. Therefore the total compensation awarded to the applicant for losses and expenses arising out of the injuries criminally inflicted on him on [ ] is €302,256.14.
Tricia Sheehy Skeffington, Mema Byrne, Martin Lawlor
Members, Criminal Injuries Compensation Tribunal
24 November 2022