Publication
F/53220 (11 April 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 appeal under paragraph 25 of the Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of an Appeal Panel
In Private
Name of appellant: [ ] (OBO [ ] Deceased)
Application number: F/53220
Date of death: [ ]
Date of application: Received by the Tribunal on [ ]
Heard on: [ ]
Location: The appeal was conducted remotely in accordance with Instruction Number 2 issued by the Tribunal under paragraph 19 of the Scheme.
Appeal Panel: Mr Conor Heaney (Chair); Mr Cathal Lombard and Ms Elizabeth Davey.
Persons present and capacity: [ ] (Applicant); Ms Anne Marie Treacy (Secretary to the Tribunal)
**Summary: Award in the sum of €28,540.
1. The Tribunal convened, in private, to consider an appeal brought by [ ] (‘the applicant’) under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’).
2. At the hearing, the Tribunal had before it an appeal hearing bundle numbering pages, 1-95.
3. By way of a notice of appeal, dated [ ], the applicant stated that she wished to appeal against the decision of a Single Member who, by a written decision on [ ], refused her application for compensation. By that decision, the Single Member, having decided that the application was made outside the three-month time limit, further decided that no circumstances had been identified for the late submission of the application so as to justify exceptional treatment for admission under the Scheme.
4. The application was brought in respect of the death of the applicant’s husband, [ ] (otherwise known as [ ] ) who was born on [ ] (‘the deceased’). The circumstances of the deceased’s death were set out in a report from An Garda Síochána, dated [ ], which was contained in the appeal hearing bundle.
5. In material part, the report stated as follows:
'On the night of [ ] at approximately [ ], [ ] approached the home of [ ] and tried to gain entry to the house. [ ], [ ] [ ] were in the house at the time.
[ ] approached the door from the inside and was shot [ ]. He was transported to [ ] Hospital by ambulance and was later pronounced dead.’
6. Subsequent correspondence to the Tribunal from An Garda Síochána, dated [ ], confirmed that, in the view of An Garda Síochána, there was no evidence to support the proposition that the deceased was killed as a result of drug-related or gang-related activity.
7. The applicant submitted to the Tribunal a copy of her marriage certificate, the deceased’s death certificate, her birth certificate and the birth certificates of all those persons who fell to be considered as ‘dependents’ of the deceased under the Civil Liability Act 1961. These included: the [ ] who, although alive at the time of the deceased’s death, died in [ ]; the deceased’s [ ], some of whom resided in [ ], together with the deceased’s [ ].
8. At the appeal, the Tribunal heard evidence from the applicant.
9. At the outset of the hearing, at the Tribunal’s invitation, the applicant explained the circumstances whereby the application for compensation had not been lodged within three months of the deceased’s death.
10. The applicant had never heard of the Scheme. In the months following the deceased’s death, [ ], who died in [ ], told the applicant about the Scheme and that she could apply for compensation arising out of the deceased’s death. [ ] told the applicant that she had made a claim under the Scheme for her [ ], [ ], following the death of [ ]. The applicant had other things to deal with in the aftermath of the deceased’s death. She did not look into the matter any further.
11. Then, in [ ], there was [ ] in the applicant’s house which caused extensive damage. [ ] was living with the applicant at the time. This was because [ ], who was [ ], was unable to care for [ ]. For the next four months or so, the applicant and [ ] had to move out of the house while it was renovated. Initially, they moved into a [ ] and, thereafter, a house with no furnishings. The applicant had to gather what she could, to make the house habitable for her and [ ], while her home was being repaired.
12. The applicant confirmed that she had sent an email to the Tribunal on [ ], enquiring about making a claim in respect of the deceased’s death. She told the Tribunal that she would have received the application form some time after sending the email but could not recall when she received it. The applicant completed the application form, which was received by the Tribunal on [ ]. The applicant acknowledged that the application form was received approximately three years and six months after the three-month period, following the deceased’s death, had expired. The applicant asked the Tribunal, when considering whether to admit the application under the Scheme, to have regard to the following factors:
a. The trauma which she faced in the immediate aftermath of the deceased’s death;
b. Difficult family circumstances., [ ], was [ ] to [ ] and ultimately died as a result of her difficulties with [ ] in [ ];
c. The house [ ] in [ ], which destroyed her home, and which resulted in her having to live in temporary accommodation with [ ] while the house was renovated. This incident, although accidental, was traumatic for the applicant and her [ ]; and
d. The applicant had undertaken the role of primary caregiver to [ ], in place of [ ], which was confirmed by a court order dated [ ]. In addition to her other roles and responsibilities, the applicant needed to prioritise looking after and caring for [ ] on an ongoing basis.
13. The applicant told the Tribunal that, on the date of the deceased’s death, [ ]. [ ] was not at home that evening. The applicant’s [ ], lived [ ] heard the commotion. She [ ] the applicant’s home and gave first aid to the deceased and accompanied him to hospital in the ambulance which attended the scene. The applicant stated that, given their proximity to the incident, the mental effects were particularly pronounced on her, [ ] and [ ].
14. The powers of the Tribunal, on an appeal, are set out in paragraphs 25 and 26 of the Scheme. The appeal hearing proceeded on a de novo basis. This meant that, at the appeal, the application was considered afresh by the Tribunal. While the decision of the Single Member was contained in the appeal hearing bundle, the Tribunal was not bound by it. All of the powers available under the Scheme to the Single Member were also available to the Tribunal on appeal. The Tribunal could uphold the decision under appeal and make no award or it could make an award.
15. In its deliberations, the Tribunal carefully considered all of the documentary and the applicant’s oral evidence.
Was the application made in accordance with paragraph 21?
16. Paragraph 21 of the Scheme provides as follows:
‘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.’
17. It was plain to the Tribunal that the application had not been submitted promptly and, in any event, not within three months of the deceased’s death. To have been lodged in accordance with the three-month time period, the application ought to have been lodged on or before [ ]. In the event, the application was not lodged until [ ]. Thus, the application was lodged just over three years and six months after the time period for the lodging of the application had expired.
18. The Tribunal was therefore required to consider whether the circumstances, which had resulted in the late submission of the application, were such as to justify exceptional treatment for its admission under the Scheme.
19. The Tribunal carefully assessed the applicant’s oral evidence which was heard at the appeal. The Tribunal was satisfied that the applicant was an honest and reliable witness who gave evidence in a straightforward manner. On balance, having had the benefit of hearing in detail from the applicant, the Tribunal was persuaded that the myriad circumstances which she faced and which had been comprehensively detailed by the applicant in her evidence, were such as to justify exceptional treatment. Accordingly, the Tribunal decided to admit the application for consideration under the Scheme.
Was the deceased the victim of a crime of violence?
20. Paragraph 1 of the Scheme provides that compensation may only be awarded under the Scheme in respect of personal injury, where that injury is directly attributable to a crime of violence.
21. It was plain to the Tribunal that the oral and documentary evidence presented at the appeal established, to its satisfaction, that the deceased died as a result of a crime of violence.
22. The Tribunal awards the applicant the sum of €3,140. This sum is the net figure for funeral expenses minus applicable government grants.
23. On the date of the deceased’s death, the sum fixed by law as compensation for his death (‘Solatium’), under the Civil Liabilities Acts, was €25,400. The Tribunal awards Solatium in the sum of €25,400.
24. The Tribunal divided the Solatium as follows:
a. The applicant, [ ] (40%): €10,160
b. [ ] and [ ] (30%), divided equally: €7,620
€3,810 each
c. [ ], [ ] and [ ] (20%), divided equally: €5,080
€1,693.33 each
d. [ ], [ ] and [ ] (10%), divided equally: €2,540
€846.67 each
Total: €25,400
25. The report from An Garda Síochána confirmed that the deceased had one conviction, in [ ], for refusing to [ ] a [ ] under the Road Traffic Act [ ]. The Tribunal decided that it would be inappropriate to withhold or make a reduction in the award by reason of the deceased’s conviction.
26. The Tribunal makes an overall award as follows:
Solatium: €25,400
Out of pocket expenses: €3,140
Total: €28, 540
Conor Heaney
Chairperson, Criminal Injuries Compensation Tribunal
For and on behalf of the Appeal Panel of the Tribunal
11 April 2022