50262 (13 September 2024)

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: [ ]

Application number: 50262

Date of incident: [ ]

Date of application: Undated - 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); Ms Tricia Sheehy Skeffington BL; Mr Roderick Maguire BL.

Persons present and capacity: [ ] (Appellant); [ ] instructed by [ ] (Appellant’s Legal Representatives); Ms Anne Marie Treacy (Secretary to the Tribunal)

Summary: Award in the sum of €238,894

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 appeal hearing, the Tribunal had before it an appeal hearing bundle numbering pages, 1-182.

3. By way of a notice of appeal, dated [ ], the applicant appealed against the decision of a Single Member who, by a written decision on [ ], made an award to the applicant in the sum of €26,310.75.

4. In his application form, the applicant stated that he had sustained injury in the vicinity of [ ], on [ ]. There were no other particulars of the incident given by the applicant in the application form. The applicant stated that the incident had been witnessed and that it had been reported to An Garda Síochána. It was stated by the applicant that he had suffered a head injury as a result of the incident for which he required treatment from [ ] at [ ] Hospital. The applicant complained of ongoing epilepsy and loss of memory.

5. The application form contained no details in respect of any loss of earnings claim or any claim for out-of-pocket expenses as a result of the incident.

6. There were two reports from An Garda Síochána on file dated [ ] and [ ]. In summary, the reports confirmed that the applicant had been assaulted in the vicinity of [ ], on [ ] at approximately [ ]. The applicant was stated not to have been able to remember the incident and that he had been unable to make a statement of complaint until [ ]. The report stated: ‘The [applicant] had been drinking most of the day on the day in question. Shortly before [ ] he became involved in a [ ] struck the [applicant] with some force on the head with a club of some sort.’

7. It was confirmed that a direction of no prosecution was issued by the DPP on grounds of insufficient evidence. In addition, the applicant’s criminal convictions were set out in the report. These were for driving and public order offences and possession of drugs. The matters were variously disposed of by way of fines and, for the driving offence, a disqualification [ ]. Although the dates of the offences were not specified, the dates of conviction post-dated the subject incident.

8. The applicant’s statement of complaint, dated [ ], was on file. In his statement, the applicant confirmed that he had been admitted to the [ ] Hospital since [ ] and had only been discharged from hospital on [ ]. The applicant stated that he was outside the [ ] when the assault occurred and that he had been drinking in [ ]. Apart from those details, the applicant was unable to venture any further information to Gardaí about the assault or the time leading up to it and following it.

9. The appeal hearing was first listed on [ ]. On that date, an adjournment application of the hearing was made by [ ] counsel on behalf of the applicant, which was granted by the Tribunal. The Tribunal was told that the applicant had engaged an actuary but that the report was not, by the time of hearing, to hand. There was also some outstanding medical information which the Tribunal was advised was being sought. In granting the adjournment, the Tribunal directed that any outstanding medical and financial evidence should be filed on or before [ ].

10. The outstanding information having been forwarded to the Tribunal, the appeal hearing recommenced on [ ]. The Tribunal heard evidence from the applicant and had the benefit of oral submissions from [ ].

11. Following the appeal hearing, the Tribunal considered that it would assist it in its task if the Tribunal’s Secretariat obtained its own vocational and actuarial reports. Upon the finalisation of these reports, their circulation and the applicant, in correspondence dated [ ], providing a comment on the actuarial report obtained by the Tribunal’s Secretariat, the Tribunal Members met to consider the totality of the evidence and determine the appeal.

12. The applicant gave evidence to the Tribunal in relation to the incident and its consequences for him. In keeping with the accounts set out in his application form and in his statement of complaint to the Gardaí, the applicant stated that he had no useful recollection of the incident in question. However, the applicant stated that the consequences of the assault upon him were profound. He lost his employment and accommodation. Relationships with his family, which, prior to the incident had been good, disintegrated. He moved from place to place and spent long periods as a homeless person. In recent years, things had improved significantly for the applicant. He had been in a stable relationship for a number of years and had been largely successful in managing to control his drug problem. In [ ], he had secured a flat and his life, with his partner’s support, was on a much more even keel.

13. 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 this Appeal Panel of 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, it could make no award or it could make an award which was greater or less than the award made by the Member at first instance.

14. In determining the appeal, the Tribunal had the following reports:

Applicant’s Reports

a. [ ] dated [ ];

b. [ ] Actuaries dated [ ]; and

c. [ ] dated [ ].

CICT’s Reports

a. Prof [ ], Consultant Neurosurgeon, dated [ ] and [ ];

b. [ ] Legal dated [ ] and [ ]; and

c. [ ] Consulting Actuaries dated [ ].

15. The Tribunal’s assessment of the applicant was that he did his best, at the hearing, to assist the Tribunal and to help it understand how the subject injury had negatively impacted on the applicant’s life and how it continues to do so currently.

16. In its deliberations, the Tribunal carefully considered all the documentary and the applicant’s oral evidence. The Tribunal also had careful regard to [ ] written and oral submissions.

Crime of violence

17. The Tribunal is satisfied, on the evidence, that the applicant sustained personal injuries which were directly attributable to a crime of violence.

Delay

18. Paragraph 21 of the Scheme 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.’

19. As can be seen, the application was required to have been made to the Tribunal by the applicant promptly and not less than three months from the date of the incident. A claim that is submitted outside the three-month time limit can only be admitted to the Scheme if the Tribunal considers that the circumstances which resulted in the late submission of the application justify exceptional treatment.

20. In this instance, the application form ought to have been submitted by the applicant on or before [ ]. In the event, the application for compensation was not received by the Tribunal until [ ]. As such, the application was received approximately 2 years and 9 months after the three-month time limit for the submission of the application had expired.

21. The Tribunal took careful account of the applicant’s evidence given at the appeal hearing. He had sustained a left sided comminuted parietal depressed fracture with a subarachnoid haemorrhage. He required emergency surgery in the form of a craniotomy and elevation of a depressed skull fracture. The applicant spent [ ] days in hospital and, following his injury, complained of poor memory and concentration, personality change, reduced frustration tolerance, aggressiveness, fatigue and stated he had developed mental health problems. The applicant experienced a fundamental change in his life circumstances, including the loss of his employment accommodation and loss of contact with his family. He remains on medication for schizophrenia and depression prescribed for him by his GP.

22. The Tribunal also had regard to the medical evidence. In his reports, Prof [ ] opined that, as a result of the incident, the applicant had undergone a personality change and subsequent depression which contributed to his unstructured lifestyle and offending.

23. The Tribunal was persuaded that the evidence, as set out, was such as to justify exceptional treatment. As a result, the Tribunal admitted the application for consideration under the Scheme.

Assessment of damages

Past loss of earnings

24. The applicant, at the time of the subject incident, had been employed as a [ ] with [ ]. He had worked for this company for six weeks in [ ] and, in [ ], had been working with the same company for approximately [ ] weeks when the assault occurred. Employed on a full-time basis, the applicant stated that he was earning €380 net per week before overtime. Before this employment, there was evidence that the applicant had been employed, in the years [ ] to [ ], in a number of entry level jobs for weeks, or a few months, at a time.

25. The applicant’s evidence was that he enjoyed his employment as a [ ] and that his progression in this occupation was curtailed by the assault. The vocational evidence supported the evidence on this point given by the applicant. [ ], in her report, stated:

‘If he had not been assaulted and had not sustained a TBI [Traumatic Brain Injury] [ ] is likely to have developed a career as a [ ]. While he might well have experienced periods of unemployment during the recession between [ ] and [ ], he should have acquired [ ] years of experience as a [ ] before the recession and he is likely to have developed a good work ethic and contacts, which would have allowed him to return to this work with the recession ended or work in alternative areas. In my opinion, [ ] TBI has resulted in a loss of earnings and this situation is unlikely to change given the nature and severity of his injuries.’

26. For her part, [ ], [ ] Legal, stated:

‘In the absence of the index event occurring, it is reasonable to assume that [ ] would have continued to work in the construction industry as a General Construction Operative.’

27. Taking account of the applicant’s evidence and the vocational evidence, the Tribunal is satisfied, on the balance of probabilities, that, but for the assault, the applicant would have continued in employment as a [ ].

28. The actuarial report from [ ], in respect of past losses, from [ ] until [ ], is in the sum of €455,679. This calculation is partly based on an hourly rate of €19.945, being the mid-point figure between the hourly rate for a [ ] (€20.52 gross) and the current minimum rate of pay for a category A construction worker (€19.37) as set out in [ ] report. The comparable figure provided by [ ] is only very slightly lower at €19.35. Accordingly, the Tribunal is prepared to rely on the calculation provided by [ ] as a basis upon which to make an award of past losses to the applicant.

29. In respect of past losses, the last full year in the [ ] calculation is [ ]. From [ ] until [ ], this amounts to €434,837. The report from [ ] values the applicant’s net past loss of earnings using the upper and lower calculations for a comparable person working in general construction. These valuations are €434,263 and €597,558 respectively. From these figures, there is deducted the estimated amount which the applicant received in social welfare benefits over the period since the subject incident. This figure is €224,444. Deducting this figure from the upper and lower valuations leaves the sums of €209,819 and €373,114 respectively.

30. From its consideration of the actuarial and other documentary evidence, the Tribunal was satisfied that it was appropriate to arrive at a net valuation of the applicant’s past losses which was towards the upper end of the scale and, accordingly, awards the sum of €315,000 in respect of net past losses.

31. From this figure, the Tribunal considers that it is fair and appropriate to make a Reddy v Bates deduction. This is to take account of the fact that, as a [ ], the applicant could not be said to have been in secure employment. To reflect this fact, the Tribunal makes a 25% deduction from the headline figure of €315,000 which amounts to €78,750. The sum, following the Reddy v Bates deduction, amounts to €236,250 which the Tribunal awards.

Future loss of earnings

32. The Tribunal noted that both actuarial reports addressed the question of future loss of earnings and set out calculations in respect of such loss. The Tribunal further noted that, in the calculation of future losses, apart from mortality, no allowance has been made in the reports for future contingencies such as unemployment or sickness.

33. The Tribunal considered whether the applicant had taken any steps to mitigate the serious consequences of his injuries following his assault. In his report, dated [ ] Prof [ ] noted that the applicant, in [ ] was referred to Dr [ ], Consultant Epileptologist, for follow up because of his post traumatic seizures. The applicant did not attend for treatment following this referral. Prof [ ] report also noted that the applicant was referred to Dr [ ] at the [ ] treatment. There was no evidence before Prof [ ] – nor was there any such evidence before the Tribunal in these proceedings – that the applicant attended for rehabilitation at the [ ], either in [ ] nor in the intervening period up to the present time.

34. Noting a similar absence of evidence of having taken up neuro-rehabilitation, Ms [ ] noted that the applicant ‘lives from day to day.’ [ ] recommended that the applicant would benefit from a structured lifestyle and participation on a course aimed at returning to work and education those who had suffered a TBI. This theme was also picked up and recommended by [ ] in her report.

35. The Tribunal, having noted the uncertain nature of the applicant’s work as [ ] - which was physically demanding and uncertain in duration - and the absence of evidence that he had taken any purposeful steps since [ ] and, in particular, in more recent years, to address the physical and mental difficulties caused as a result of the subject incident, was not persuaded that it would be appropriate to make an award for future losses. The Tribunal concluded that the award which it had made for past losses up to the present day, which spanned the [ ] year period or so, following the subject incident, was a just and appropriate recognition of the losses incurred by the applicant as a result of the assault perpetrated upon him.

Vouched out of pocket expenses

36. At the Tribunal’s request, the applicant’s legal representatives, under cover of email dated [ ], furnished to the Tribunal a Schedule of Expenses. The Schedule sets out under the heading ‘List of Special Damages’, those fees raised by the applicants’ experts in the provision of their reports. These amount to €2,644 which the Tribunal awards.

37. In addition, under the heading ‘Estimated cost of prescribed Medications to age 80’, there is set out the projected costs of medications and GP attendances which the applicant will require until he attains the age of 80 years of age. This figure is in the sum of €75,140. The only stated rationale for these costs is reference to HSE rates in respect of the calculation of prescription costs. There is no reference to what impact of any entitlement to the GP visit card or medical card could have on these projected costs, nor why it was claimed that the applicant would need to visit his GP six times per year. Accordingly, this claim is insufficiently evidenced. In any event, for the similar reasons as those set out for not making an award for future loss of earnings, the Tribunal could see no proper basis on which to make an award for the projected cost of future medications for the next [ ] years.

38. The Tribunal carefully considered whether a deduction or withholding of an award fell to be made under either paragraphs 12 or 13 of the Scheme. The Tribunal noted that the report from An Garda Síochána, dated [ ], stated ‘There was a suggestion that [the applicant] [ ], having become involved in an argument with [ ] earlier in the evening. The clear inference which the Tribunal was being invited to draw was that the applicant’s negligent or provocative behaviour, in the period immediately preceding the assault, was the reason why he was attacked. The Tribunal, in the absence of evidence to support the assertion contained in the report, did not consider that it was reasonable to draw this inference.

39. The Tribunal also considered that there was no proper basis upon which to make a reduction or to withhold the applicant’s award of compensation based on his criminal convictions. The reports from the Gardaí, confirmed that the convictions were recorded following the subject incident.

40. The Tribunal makes the following award: €238,894

**Conor Heaney

Chairperson, Criminal Injuries Compensation Tribunal

For and on behalf of the Appeal Panel of the Tribunal

13 September 2024