Publication
53156 (21 January 2020)
From Criminal Injuries Compensation Scheme
Published on
Last updated on
From Criminal Injuries Compensation Scheme
Published on
Last updated on
Criminal Injuries Compensation Tribunal - General Scheme
Single Member Decision
made on the 21st day of January 2020
File No. 53156
Application of: [ ] (the Applicant)
Date of incident: [ ]
Application date: [ ]
The Applicant suffered serious injuries during a violent criminal assault beside a [ ] located near [ ] sometime after 3am on [ ] wherein he suffered personal injuries, loss and damage, including the loss of sight in one eye.
The offender was convicted of the criminal offences.
The Applicant successfully sued the [ ] and the offender in damages for personal injuries, which proceedings he compromised with the benefit of legal advice and he has received compensation of [ ] in aggregate from the civil defendants.
The Applicant seeks €65,000 under the Scheme, which he submits are special damages not recovered from the civil defendants as part of the compromise of the civil proceedings.
The Applicant is aware that the Scheme makes no provision for general damages for pain and suffering.
Article 21 of the Scheme requires that applications 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 injuries.
This application was significantly late, having been made 41 months after the event giving rise to the injuries.
The Tribunal is therefore asked to determine the circumstances of this late application as justifying its exceptional treatment. The circumstances as submitted by the Applicant are that;
(a) The Applicant was advised by Counsel that application could not be made under the Scheme after three months post injury, which advices were sought by letter dated [ ] (referring to a 6-month time limit generally applied), being almost 8 months post assault, and;
(b) The criminal prosecution of the offender did not conclude until [ ] [ ] before which time it is submitted that an application under the Scheme could not have been concluded, and;
(c) That any award under the Scheme may be recouped by the Tribunal from the Applicant out of compensation received by him from the civil defendants, and;
(d) That the Applicant's solicitors had prepared an application by [ ] but withheld it from the Tribunal in reliance upon Counsel's advices referred to at (a) above.
The Tribunal notes that the Applicant made a statement to An Garda on [ ] [ ] at [ ] being within 2 days of the assault.
The Applicant has disclosed Counsel's advice dated [ ] on which he relies. Counsel advised, "No, there is no such extension," in response to the Applicant's question if there was an extension to "a 6-month time limit generally applied."
The Tribunal notes that contrary to what is submitted by the Applicant, Counsel did not in fact advise that application could not be made after three months post assault.
It appears to the Tribunal that the advice sought of Counsel was premised incorrectly and that the advice of Counsel was incomplete, but nothing turns on either the request or the advice.
The Scheme in fact makes no provision for any extension of time in which to apply. Rather the Scheme allows the Tribunal to treat late applications as exceptional, if it is satisfied that the circumstances of such late applications justify such exceptional treatment.
The Tribunal is not satisfied that counsel's advice obtained after a limitation period has already expired, whether such advice is complete or not, could ever constitute circumstances that would justify exceptional treatment by the Tribunal of a late application. If an Applicant believes that he has suffered a loss due to his reliance upon legal advice, the Scheme makes no provision for redress in such circumstances.
As to the Applicant's submission regarding the conclusion of an application to the Tribunal under the Scheme, the Applicant will note that the limitation of actions regulates the time before which a proceeding must be commenced, not when it is concluded. Again, the Tribunal is not satisfied that this is a circumstance that justifies exceptional treatment of this application. Many if not most applications to the Tribunal are not concluded for many months if not years after they are made.
As to recovery from the Applicant, this provision of the Scheme refers to compensation received from an offender or third party, after an award has been made by the Tribunal. This does not apply here as the Applicant has already been compensated through civil judicial proceedings.
Regarding the Applicant's solicitor having withheld an application in reliance on counsel's advice, the Tribunal notes that even if an application had been made in [ ] it would still have been significantly late, and in circumstances that were unlikely to have justified its exceptional treatment. And the Tribunal notes again that the Scheme makes no provision for redress in circumstances where an applicant alleges a loss due to reliance on legal advice he received.
The Tribunal also notes the general point that to treat this late application as exceptional would be grossly unfair and unjust, both to most applications who apply within three months of criminal injury and to those few applicants whose late applications are not admitted.
The Tribunal is not satisfied in all the circumstances, that they justify its exceptional treatment and the Application is therefore refused.
In circumstances where the Application is refused, it is not necessary for the Tribunal to consider or make any determination or assessment as to what special damages, if any, the Applicant might have been entitled to recover under the Scheme, over and above the substantial compensation already received through the civil judicial proceedings, or whether such would constitute double compensation under the Civil Liability Act under which the Tribunal is required to assess and determine compensation, or whether Article 16 of the Scheme would apply.
Signed: [ ]
[ ]