Publication
50001 (29 June 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: 50001
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 around [ ] on [ ], he was driving to the home of a friend in [ ]. He got out of the car, locked it, and then noticed there was someone walking behind him. That person demanded the keys of the applicant’s car. The applicant backed away when he noticed the unknown man had [ ] in his hand. The man gestured with [ ] and hit the applicant’s arm with it. The applicant dropped the keys to the ground and ran to his friend’s house. The applicant then noticed that another man was there also.
4. The man with [ ] got into the applicant’s car and drove it off. The other man returned to another car, and also drove off.
5. The applicant phoned Gardai from his friend’s home, and, when his friend noticed that the applicant was bleeding from a wound on his arm, an ambulance was also called.
6. The applicant was taken by ambulance to [ ] Hospital in [ ] where he was treated and then transferred to [ ] Hospital in [ ] for an operation to his arm.
7. The applicant suffered a laceration to his left forearm, measuring approximately 8 cm.
8. At the time of his application, the applicant continued to experience weakness in his left hand and a slight loss of mobility in the same hand. The applicant also had a small deformity on his arm from where the wound was repaired.
9. The applicant was absent from work in a firm of [ ] from [ ] to [ ].
10. The applicant claims compensation from the Tribunal for loss of earnings during this period and expenses incurred while receiving medical treatment.
11. On [ ], the secretariat of the Tribunal wrote to the superintendent of [ ] Garda Station seeking particulars of the incident which gave rise to the applicant’s injuries.
12. Under cover of letter dated [ ], Detective Garda [ ] of [ ] Garda Station informed the Tribunal of the facts of this case, which are similar to the facts presented by the applicant in his application form. The Garda Report also confirmed that the applicant had no criminal history, and the assailant had not been caught.
13. On [ ], the secretariat of the Tribunal wrote to the applicant seeking details of his loss of earnings, including details of absence from work, details of net loss of earnings and a copy of his P60 for the previous year. The applicant was also asked to send the Tribunal the details of any travel expenses. It was brought to the applicant’s attention that the application was made outside of the required three-month period post-incident, and the applicant was asked to supply a written explanation in relation to the delay in making the application in order to justify exceptional treatment. No response was received to this letter.
14. On [ ], the Garda Report was forwarded to the applicant and the applicant was again asked to submit details of his loss of earnings and receipts to vouch his out of pocket expenses.
15. On [ ], the secretariat of the Tribunal wrote to the applicant asking if he wished to pursue his claim, and, if so to submit the documentation sought, including details of loss of earnings and 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. No response to this letter is on file.
16. The following documents were furnished to the Tribunal Member for determination:
a. Completed application form, signed by the applicant on [ ];
b. Garda Report under cover of letter to the Tribunal dated [ ];
c. Letter from secretariat of the Tribunal to applicant dated [ ] seeking documentary evidence to support his claim and a written explanation for the delay in making the application;
d. Letter from secretariat of the Tribunal to applicant dated [ ] enclosing Garda Report;
e. Letter from Tribunal dated [ ] asking 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 applicant did not make his application until [ ], over a year past the required deadline.
20. By letter dated [ ], the secretariat of the Tribunal invited the applicant to make written representations why his late application should be granted exceptional treatment. No response was received to this letter.
21. There is therefore no evidence before the Tribunal to determine that there are any circumstances which warrant the granting of exceptional treatment in this case.
22. Therefore the application must be refused, pursuant to Paragraph 21 of the Scheme.
1. 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.”
2. 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.
3. 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.
4. Without evidence of the expenses incurred, including documentation relating to loss of earnings as a result of being unable to work, there is no information upon which the Tribunal can base an assessment of compensation, having regard to the value of any social welfare benefits received by the applicant.
5. The documents in question are integral to the formation of any determination.
6. The secretariat of the Tribunal wrote to the applicant on two occasions, in [ ] and [ ], inviting the applicant to provide information relating to his medical and transport costs, and other out of pocket expenses, including his loss of earnings, and asking the applicant to submit any vouching documentation to support the application for compensation.
7. No response was received to either of these requests.
8. 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 out of pocket expenses were incurred by the applicant, and what loss of earnings he experienced.
9. Therefore applying Paragraph 11 of the Scheme, the application must be refused.
23. 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
29 June 2022