51067 (17 May 2022)

Criminal Injuries Compensation Tribunal

Scheme of Compensation for Personal Injuries Criminally Inflicted - General Scheme

Appeal of [ ]

Application number: 51067

Name of applicant: [ ]

Date of incident: [ ]

Date application received: [ ]

The Applicant applied to the Tribunal arising from an unprovoked violent attack which occurred in the early hours of the morning. He intervened in a row [ ], and was punched in the head. He fell to the ground and struck his head again. At the time he was aged [ ], having been born on [ ].

A single member of the Tribunal made a determination in the Applicant’s case at first instance by decision dated [ ]. The Applicant exercised his right under Paragraph 25 of the Scheme to appeal this decision by way of hearing by three members of the Tribunal.

A panel of three members of the Tribunal was appointed to hear the appeal. It met on the [ ] and [ ] remotely to hear the Applicant’s appeal. The Applicant was represented by [ ]., [ ]., [ ] and [ ] of [ ]. The Tribunal considered the case afresh, taking into account the papers submitted by the Applicant and the written and oral submissions made by his legal team.

A Garda report dated [ ] outlined that the applicant was the victim of an unprovoked attack at approximately [ ] on [ ] on [ ]. He was [ ] in a row he came across and was struck once in the head in what was described in the Garda report as an unprovoked attack. It was reported the Gardaí on the same day. The Applicant has one minor previous conviction and [ ]. The assailant pleaded guilty was convicted and sentenced to [ ] imprisonment under s. 4(1) of the Non-Fatal Offences Against the Person Act, 1997 in [ ]. No compensation was paid to the applicant.

The Applicant suffered extensive injuries from his assault. He has no recollection of what occurred. He was brought by ambulance to [ ]. He deteriorated and was transferred to [ ] where he underwent neurosurgery on the [ ]. He was kept intubated and unconscious for [ ] weeks. He gradually regained consciousness. He suffered from a severe respiratory infection He then underwent extensive physiotherapy and had to learn to walk and talk again. . He had suffered significant weight loss and required a special high calorie diet. The Applicant remained in hospital in [ ] until approximately the [ ].

While the Applicant slowly recovered in the following months, he continued to suffer from severe headaches and parasthesia of his left arm, as well as mood swings and depressive symptoms. These symptoms were noted on review in [ ]. In addition, the Applicant’s hearing was affected, as well as his swallow and control of his mouth when eating. The Applicant’s mood continued to deteriorate and he was referred by his General Practitioner for mental health treatment, for which he was hospitalised for [ ] between [ ]. He was subsequently treated as an outpatient. The Applicant’s treating consultant neurosurgeon concluded in [ ] that the physical and mental impact of the injury gave a bad long-term prognosis for the applicant. The Applicant’s clinical psychologist treated him a number of times in [ ] and [ ], and attributed the severe depression with suicidal ideation, agitation and marked tiredness, general anxiety, impaired memory and concentration, frequent headaches, dizzy spells and left-sided hypersensitivity to the injury. The Applicant suffered significant difficulties in relation to aspects of reasoning and attention and concentration, but other skills were well-preserved.

The Applicant was treated on an ongoing basis with pyschotropic medication, though his consultant neurosurgeon noted in 2013 that he had no neurological deficit. He continued to complain of headaches and dizzy spells. He had ongoing difficulty in engaging with work. His headaches got worse as noted in his GP’s report of [ ]. The Applicant suffered epileptic seizures as a result of the injury, but these were controlled by medication.

The Applicant was unable to work other than occasionally after his injury. He had been employed as a [ ] prior to the injury, though there are no records of his earnings. The Applicant gave evidence that he had just started to work as a [ ] as well as with his old employer from [ ], and that he was going to start an [ ] as a [ ] in the week following his assault, and this was confirmed by a letter from his prospective employer. The Applicant had tried a number of times to work, and it was thought at various times over the years that he would be able to return to work in some capacity, that has not happened. The Tribunal accepts that the Applicant has attempted to work as a [ ], but has found this next to impossible due to limitations following from his assault. Vocational reports submitted by the Applicant have however indicated that he would be suitable for part-time employment in a limited form and this would be something that would be of benefit to him.

A number of reports were submitted outlining the applicant’s medical and work history.

The General Scheme provides that the Tribunal may pay compensation, but not general damages, in respect of personal injury, where the injury is directly attributable to a crime of violence, subject to the provisions of the Scheme. The Tribunal is entirely responsible for deciding in any particular case whether compensation is payable under the scheme.

Article 21 of the General Scheme (pre-April 2021) states that “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 this case, the application was received on the [ ]. The application was received outside the specified period of three months, some [ ] and [ ] after the injury.

Substantial submissions were made to the Tribunal by the legal team of the Applicant in relation to his eligibility under the Scheme and the Tribunal is grateful for the assistance these provided. The Tribunal notes that the Applicant suffered a serious brain injury. He was required to have surgery and spent time in [ ]. He required ongoing medical care. He continues to suffer from the ongoing effects of the injury almost [ ] years later and is likely to do so into the future. The Tribunal also notes the length of time that had elapsed before the application was made and has considered this also. The Tribunal finds that these are all circumstances, when considered together, that justify exceptional treatment and therefore decides to admit the application for consideration under the Scheme.

The Tribunal heard evidence in relation to the [ ] that was offered to the Applicant. It does not appear that this was a formal [ ], as it was arranged at very short notice and no documentation indicating that it was a recognised [ ] was submitted. The Tribunal also notes that while the Applicant did work before he was injured from a young age, and did not claim social welfare payments, his employment does not appear to have been accounted for to the authorities from [ ] onwards.

Based on the actuarial report submitted by the Applicant, his legal representative fairly submitted that the claim on behalf of the Applicant was not based on his not earning at all in the future, but rather based on his earning at a reduced capacity of 20 hours at the minimum wage. The Tribunal finds that this is an appropriate assumption, and in line with the vocational assessor [ ] reports, and the report of Dr. [ ] of [ ].

In relation to his losses to date, the actuarial evidence submitted by the Applicant in the report of [ ] dated [ ] valued this at €354,354. The actuarial evidence also outlined that there would be a significant amount of Courts Act interest in relation to this amount, but the Tribunal does not believe that it is appropriate to award Courts Act interest in this case.

From the amount that he would have earned, the Tribunal must deduct the payments made. These were provided by the Department of Social Protection after the hearing of the case and the Applicant was given an opportunity to make submissions in relation to the relevant documents. The payments made up to [ ] amount to a total of €163,218.90.

This gives an amount of €191,135 that the Applicant is claiming in relation to past loss of earnings. The Tribunal decides to deduct a contingency amount from this historic loss, to take account both of the possibility that the Applicant would not have maintained working at the above income level given the national economy from [ ] and also given the precarious nature of his proposed employment and his work history before the assault. The Tribunal finds that the appropriate deduction in these circumstances is 30%. This gives an amount of €133,794.50.

At Appendix 7 to the submissions on Appeal, the Applicant claimed travel expenses. The majority of these are expenses incurred by his family attending every day while he was in hospital for a 30 day period after the injury. The Tribunal decides to award €3,000 towards this travel.

The Applicant has claimed for vouched medical and expert report fees in the amount of €11,440 and the Tribunal awards this amount.

In addition, the Applicant will continue to face significant medication costs, which will be capped at €100 per month. He will lose his entitlement to a medical card. This amount has been calculated by his actuary in the report dated [ ] as costing €43, 962 over the Applicant’s lifetime and the Tribunal accepts this amount.

Further, the Tribunal makes an award for future GP care of €4,000 based on his actuarial estimates dated [ ].

The Tribunal finds that the potential earnings of the Applicant are difficult to quantify. There is no official record of what his historical earnings were from [ ] onwards. While the Tribunal finds that he was going to start as an [ ], the Tribunal finds that this would not have been an indentured position leading to a qualification, but rather a less formal arrangement. It is also to be taken into account that the economic crash took effect in [ ], and his employment would have been even more precarious than it previously was, for an extended period.

As against this, the Tribunal were impressed by the Applicant and believes that he was a hard-working person who attempted a number of times to re-enter the workforce. The Tribunal finds, having considered the reports submitted by the Applicant, that the appropriate potential future earnings should be based on the Applicant earning €32,000 gross per annum, whether as a [ ] or otherwise. The Tribunal finds that this would result in a net weekly earning of €551 as set out in the most recent actuarial report. From this amount, the Tribunal believes that there should be deducted the amount of €210 per week as set out in the same report. Using the multipliers submitted, the Tribunal believes that the Applicant would therefore have a potential headline future loss of €457,622.

However, the Tribunal believes that from this amount a contingency deduction should be made to take account both of the possibility that the Applicant would not have maintained working at the above income level, and would not do so until the age of [ ]. The Applicant’s recorded employment was somewhat precarious before the injury, as evidenced by his redundancy at [ ] and his Revenue contributions, and it would have remained so. Again, the Tribunal finds that the appropriate deduction in these circumstances is 30%.

This gives an amount of €320,335.40.

The Tribunal therefore awards the Applicant the following amounts:

1. Past loss of earnings: €133,794.50

2. Future loss of earnings: €320,335.40

3. Medical and expert fees: €11,440

4. Future medication costs: €43,962

5. Future medical costs: €4,000

6. Travel and parking expenses: €3,000

Total: €516,531.90

Dated: 17 May 2022

Roderick Maguire on behalf of the Tribunal

Elizabeth Davey

Cathal Lombard