53859 (28 June 2023)

The Criminal Injuries Compensation Tribunal

In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted

Decision of a Single Member

Name of applicant: [ ]

Application number: 53859

Date of incident: [ ]

Date of application: [ ]

Decision outcome: The applicant is awarded the sum of €1,200 under the Scheme on the condition that any sums paid by the applicant’s assailant up to that amount be repaid to the Tribunal.

1. [ ] (‘the applicant’) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’).

2. In his application for compensation under the Scheme, dated [ ] (and received on [ ] the applicant stated that he had suffered injuries in [ ] as a result of an assault which occurred on [ ]. The applicant is a [ ]; the applicant explained on his application form that the damage to his teeth arising from the assault had a particular impact on his ability to work.

3. A deadline of three-months post-incident applies to applications under the Scheme, but this may be extended. Paragraph 20 of the Scheme (formerly para 21) of the Scheme states (with emphasis added):

“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”.

4. In this case the incident occurred on [ ]. In the normal course, an application should have been submitted on or before the [ ]. Instead it was signed on [ ] and received by the Tribunal’s secretariat on [ ]. This is a year and four months outside the normal timeframe.

5. The Tribunal must therefore consider whether there are circumstances which justify the exceptional treatment of considering the application despite its late submission. In this regard, the Tribunal notes that the Scheme is remedial in nature and circumstances giving rise to exceptional treatment should be interpreted in a “broad, liberal and generous manner responsive to the circumstances of the victim of crime in each case”: Bowes v CICT [2022] IEHC 703 [70].

6. On his application form the applicant stated that it was only after a criminal process had concluded on [ ] that he became aware the possibility to apply for compensation under the Scheme. He said that while his assailant had been ordered to pay him compensation, only €700 of the €2,400 awarded had been paid over to him. He said that it was two years since the incident and he still couldn’t afford to get the necessary dental work required as a consequence of the incident.

7. The Tribunal accepts that where a person is awaiting compensation to be paid through another process it is unlikely that alternative routes for redress will be sought, but that when that compensation is not in fact forthcoming other avenues become more pressing. It notes that the applicant applied within three months of gaining knowledge of the Scheme. Taken together these amount to reasons for affording the exceptional treatment of considering the application outside the normal timeframe.

8. I am satisfied that the applicant has established, on the balance of probabilities, that he was a victim of a crime of violence and sustained personal injury which is directly attributable to that crime of violence.

9. The incident was reported to the Gardaí on the day following the incident thereby meeting the requirement of Para 22 of the Scheme that the matter be reported without delay. It was made on the appropriate form.

10. Accordingly, I admit the application for consideration under the Scheme.

11. On his application form the applicant has detailed the particular impact the assault had on him as [ ] and also as a person who had suffered a traumatic incident. He details insomnia and nervousness and a lack of wish to socialise. The Tribunal readily accepts that the incident was traumatic and expresses its sympathy to the applicant for having had to endure the fact and consequences of being assaulted and injured.

12. In this context however it is worth setting out what the Tribunal can and cannot do. The Tribunal may make awards of compensation for expenses that are incurred as a consequence of the injury sustained as a consequence of a crime of violence. This might cover the cost of treatment or loss of earnings, but the Tribunal must always have evidence for any such losses and expenses so that it can assess the compensation it awards. Also, the Scheme does not allow the Tribunal to make any award for general pain and suffering caused by the injury: Para 6(e). Therefore, while treatment may be required for psychological injuries arising out of a traumatic event, and any costs of this may be recoverable under the terms of the Scheme, the general distress and anxiety caused by being assaulted does not give rise to compensation under the Scheme.

13. While a loss of earnings was claimed on the application form, in subsequent correspondence (of [ ]) the applicant’s solicitor confirmed that no P60 or record of his loss of earnings was available. As such, the Tribunal is not able to make any award for these losses.

14. The receipts on file relate to dental work. The Tribunal must assess these receipts for their link to the injuries sustained as a cause of the incident. Where the treatment was required because of those injuries, the costs of it can be awarded as compensation.

15. In this regard it is worth noting that the Garda report indicates that the applicant sustained a broken molar in the assault, that the buccal cusp was fractured, and the tooth was loose and the surrounding cheek area swollen. In his application form the applicant stated that the injuries sustained were a broken tooth and damage to his face and teeth; and that the broken tooth was still in his mouth and sore, tender and sensitive. He stated that treatment required was to have the broken tooth removed and an implant fitted. In relation to the delay, he said that it was only after a particular Court date that he “discovered that I could have applied to the Tribunal for compensation to have my mouth that is broken tooth removed and an implant fitted”. In relation to the compensation of €2,400 due to him from his assailant, the applicant stated “I waited two years and I still cannot afford to have my teeth fixed until I receive the monies if ever”.

16. Through his solicitor, on [ ], the applicant submitted and invoice from a dentist dated [ ] for the cost of removal of root L4 and implant placement, at a cost of €2,500. This is clearly linked to the injuries sustained and is a recoverable cost. While there must be a query over why the dentist gave a receipt for the work on the day after the incident, and the applicant stating on his form that the work had not been done and was required a year and a half later, this discrepancy does not undermine the basic evidence of the done work done and its cost. On the balance of probabilities this was a simple mistake setting out the date of work done, which related to the incident in question.

17. A further receipt from the same dentist is dated [ ]. It is for €80, but there is no indication what this invoice is for. It cannot be easily linked to the injuries sustained and is not therefore a recoverable cost.

18. In the letter of [ ] the applicant’s solicitor states that “our client informed us that he was unable to afford to have the dental work done until [ ] when the condition of his teeth worsened, when he went abroad to affect this”. The letter states that it encloses a summary of the work that had to be done in [ ] and a receipt for it. The letter states that the applicant is claiming for the dental work.

19. There is an apparent contradiction between stating that the client was unable to afford ‘the work’ until [ ] with having sent a receipt for the implant placement in [ ]. Further, the description of the work done abroad is for ‘full extractions’, [ ]. There is nothing on the face of the invoice and summary of the work which indicates why a claim for one broken tooth subsequently required full mouth treatment. As such there is insufficient link to the incident subject of this application no award of compensation is made for the dental work undertaken in [ ].

20. As a consequence, the dental treatment in the sum of €2,500 is the full sum which has been evidenced an expense that arose from the incident in question.

21. A further relevant rule is in Paragraph 5 of the Scheme. This provides that the Tribunal must deduct any compensation paid to the applicant from another source in respect of the incident. Further it can make an award of compensation conditional on some or all of its repayment if compensation is secured from another source. In this regard it is noted that the applicant was awarded €2,500 in compensation from his assailant as part of the criminal process. However the Gardai have confirmed that of this €1,300 has been paid and €1,200 remains outstanding. In correspondence from the applicant’s solicitor dated [ ] the applicant confirms that the total sum received from the assailant was €1,300.

22. As such, €1,300 must be deducted from the compensation of €2,500 for the dental treatment required as a consequence of his injuries which were criminally inflicted. Further, the compensation of €1,200 which is subject of this award must be conditional on repayment should the applicant’s assailant eventually pay him the full amount ordered by the Court.

23. The Tribunal awards the sum of €1,200 in compensation for the criminally inflicted injuries sustained by the applicant on [ ], which compensation is made conditional on its whole or part repayment in the event that the offender convicted of the applicant’s assault pays any further sums due and owing to the applicant by Order of [ ] Circuit Court. Any such repayment should be affected within 21 days of its receipt by the applicant and from the offender.

Tricia Sheehy Skeffington

Member, Criminal Injuries Compensation Tribunal

28 June 2023