54745 (23 May 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: 54745

Date of incident: [ ]

Date of application: [ ]

Appeal hearing: [ ]

Panel members: Patricia Sheehy Skeffington BL, Roderick Maguire BL, Georgina Robinson, solicitor

Decision outcome: The applicant is awarded the sum of €4,329.96 under the Scheme.

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 [ ], the applicant stated that he had suffered injuries when he was assaulted at the [ ]. The applicant’s assailant apparently had issues with the running of the local [ ]. The applicant was [ ] of the [ ] at the time. According to the Garda report, the assailant punched the applicant on the jaw causing him to [ ] and he briefly lost consciousness. He was transferred to [ ] Hospital. After his first conviction being vacated the applicant’s assailant was subsequently successfully prosecuted under section 3 of the Non Fatal Offences Against the Person Act, 1997 on [ ].

3. On [ ] a member of the Criminal Injuries Compensation Tribunal (“the Tribunal”) made a decision on the application, deeming it to be out of time under Para 21 of the Scheme. The applicant exercised his right to appeal this decision by way of a Notice dated [ ]. A three-person panel met in the Tribunal offices at Bishop’s Square in Dublin 2 to hear this appeal.

4. The Tribunal had the benefit of a 68-page file which contained the application form, garda statements and a report, correspondence, the report of consultant psychiatrist [ ] dated [ ], receipts for medical treatment, the first-instance decision and employment records. A further 23-page file was submitted, which contained correspondence with the Gardai in [ ] in respect of the outcome of the criminal hearing and with a view to progressing this application; correspondence dated [ ] to the gardai progress his complaint in respect of the lack of information on the progress of the criminal case; and related correspondence from a solicitor retained by the applicant in respect of these issues.

5. At the oral hearing on [ ], the Tribunal panel had the benefit of meeting the applicant and [ ] at an in-person hearing. At the invitation of the Tribunal, the Appellant submitted an email on [ ] which gave further detail of his medical and transport expenses related to the incident.

6. As indicated above, the submission of the application three months after the incident in question is an issue in this case. Paragraph 20 of the Scheme (formerly para 21) 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”.

7. In this case the incident occurred on the [ ]. In the normal course of events the application should have been made on or before [ ]. It was submitted more than two years after that date, on [ ].

8. In order to assess whether a late application is admissible, the Tribunal must deter-mine whether there are circumstances which on its consideration, justify exceptional treatment. 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].

9. On this application form the applicant listed four factors which had impeded the timely submission of the application form. These were:

(i) Insomnia, trauma and mental health impacts preventing him from functioning properly for more than three months;

(ii) His lack of computer literacy and reliance on his wife, who had been out of the country, to submit the application;

(iii) Unawareness of the Scheme until recently;

(iv) That the applicant thought that he would be awarded compensation through the Courts – indeed this was the result of the first hearing which decision was subsequently vacated.

10. The applicant expanded on these points (in particular (i), (iii) and (iv)) in his oral evidence to the Tribunal. The applicant gave evidence of the wider context of his experience of the criminal justice system as a victim of crime which he submitted impacted on his ability to comply with the Scheme’s timelines.

11. The applicant stated that in the immediate aftermath of the assault he was very badly shaken. He said that although he had tried to go back to work as a [ ] two weeks after the assault he found himself unable to work, and took holiday due to him in order to recuperate. The applicant stated that he returned to this employment after around six weeks, however this was a part-time job. He said that his main job was [ ]. He said that the traumatic impact of this incident on this work was more profound; he found he was unable to make decisions and get things done, that he had broken down crying in a [ ] while trying to work at this time. He said that friends and neighbours had helped him out at this time.

12. The applicant described the emotional and psychiatric impact the assault had on him. He said that he lost his confidence and was unable to socialise. He described avoiding events and places, and having to cut evenings short when a matter connected with the processing of the criminal case came up. He stepped down from being [ ]. The Tribunal notes that the psychiatric impact on the applicant is corroborated by the consultant psychiatrist [ ] report. The applicant went for counselling to assist in processing the trauma of the incident. Indeed, the day before the Tribunal hearing the applicant been in contact with his counsellor.

13. The applicant described the stress of the court process that followed the assault. He said that, [ ] being a close-knit community, it was very difficult to persuade people to act as witnesses, even though they had been present when he had been assaulted and knocked unconscious. He also stated that he was unfamiliar with court processes and what to expect. As such he was reliant on the gardai to give him information as to when to attend court and to keep him updated with the progress of the case, which was a source of stress to him.

14. The applicant stated that when the perpetrator had first pleaded guilty and been convicted in [ ]. He said that he was given an opportunity to give a victim impact statement which he did, though found it difficult. [ ]. The applicant said that he felt that some justice had been done and felt relief that it was over. The applicant emphasised that it was not the money as such, but recognition that a wrong had been done to him.

15. The applicant said that after the offender had been convicted he heard nothing further from the gardai for a while. He said that then rumours started to circulate of the offender claiming that he was never going to pay the applicant anything. The applicant recalled that the partner of the [ ] (in which [ ] the incident occurred) phoned him sometime in the [ ] of [ ] to say that the offender was claiming that he had got the conviction overturned. The applicant said he contacted the local gardai who knew nothing of this and found it very surprising. However, some weeks later when the applicant was out celebrating his [ ] with his wife and sister up from [ ] he got a phone call from the gardai confirming that the conviction had been vacated and the case would be heard again. The applicant said that he found this extremely shocking – indeed the shock was such that his evening out came to an abrupt end as he was very upset.

16. The applicant then relates having found out through friends and acquaintances when the case was being called on, and that he found out with such little time that he had to cut short a holiday in [ ] to attend. The applicant described these as stressful, difficult and anxious times, bringing back the trauma of [ ].

17. The applicant states that the trial itself on [ ] was very difficult [ ]. However the upshot was that the perpetrator was again found guilty. On this occasion he received a suspended custodial sentence. Indeed, the applicant stated that he had told the Court that he had no interest in the offender going to prison, in particular as his [ ] was coming up and he did not want him to be incarcerated at that time. However the judge also held that it was not an appropriate case in which to make a compensation order. The applicant said that he found this very hard; that he had worked with the criminal justice system and turned up at court dates which was discomforting and distressing, but he had been not only left out of the loop with vital information about the progress of the case but the attacker was now not going to pay him compensation. He expressed feelings of being badly treated and let down by the system, and said that he had never got adequate answers as to why the first conviction had been set aside.

18. The applicant said that it was at around this time that he first sought the services of a solicitor. Correspondence was sent by him, and by his solicitor to complain about and elicit information on the manner in which the case had progressed without adequate notice to him. In response to one such letter the applicant received correspondence from the Garda Victim Service Office, dated [ ]. This sets out the series of court dates culminating in the trial date of [ ]. It also advises that there is a range of useful information on the Garda website for victims of crime, which can also be accessed from the Garda Victim Service Office. It refers the applicant to the Crime Victims Helpline should he wish to obtain help, information or support. There is no reference to the Criminal Injuries Compensation Scheme in this correspondence.

19. By letter of [ ] the applicant wrote to a contact in the DPP seeking information to assist him in making an application for compensation under the Scheme. The letter states that he had not been aware of the Scheme until recently, and was making an application which he knew would be outside the 3-month timeframe required by the Scheme.

20. In his evidence to the Tribunal the applicant reiterated that he had not known about the Scheme until shortly before he had made his application, and stated that he thought that information about the Scheme should, as a matter of course, be given to victims of crime. The applicant’s wife, [ ] who had a well-prepared file on her husband’s application, supported the submission that the applicant had not known about the Scheme until shortly before the application was made. They asked how they could abide by timelines that they did not know about?

21. The Tribunal is aware that generally the Gardai do give information about the Scheme to victims of crime in a timely fashion. However, it entirely accepts the applicant’s contention that in this case he did not learn about the Scheme until in and around [ ]. This was either because he was not told about it earlier, or that if he was told about the Scheme it was during a period of trauma in which not all information was processed in a manner in which it could readily be recalled. The Tribunal is satisfied that the applicant was not told about the Scheme in writing at all, and was only given the leads by which he discovered its existence in [ ]. The Tribunal notes that the applicant submitted his application within three months of finding out about the Scheme.

22. These are circumstances which are particular to a victim of crime who has himself had no occasion previously to have engagement with the criminal justice system, and who suffered trauma as a result of being a victim of crime, which was in this case exacerbated by the first conviction being vacated without any or adequate information being supplied to the applicant. His late application was due to no fault on his behalf, and indeed he applied very soon after he was able to do so. As such, the circumstances warrant the exceptional treatment of admitting this application for further consideration under the Scheme.

23. The facts set out above establish on the balance of probabilities, that the applicant was a victim of a crime of violence and sustained personal injury which is directly attributable to that crime of violence.

24. The incident was reported to the Gardaí on the night of the incident, thereby meeting the requirement of Para 21 of the Scheme that the matter be reported without delay. Accordingly the application is admitted for consideration under the Scheme.

25. As indicated to the applicant during the hearing of his appeal, the Tribunal may make awards of compensation for expenses that are incurred as a consequence of the injury sustained by a crime of violence. This might cover the cost of treatment or loss of earnings. However the Scheme does not allow the Tribunal to make any award for general pain and suffering caused by the injury: Para 6(e) of the Scheme. While the Tribunal acknowledges and expresses its sympathy to the applicant for having had to endure the trauma of the assault and its aftermath, it must nonetheless remain within the tramlines of the Scheme when it considers the compensation it is authorised to award.

26. In terms of loss of earnings, the applicant’s two income streams were impacted. First, the applicant was absent from his job as a machine operator between [ ] and [ ] in the immediate aftermath of the assault. His employer confirms that he went back to work on [ ] however was too unwell; out of goodwill his employer paid him for this week’s work. While he returned to work on [ ], he took holidays from [ ] as he did not feel well enough to work. It appears that the applicant was absent (without pay) for a total of four weeks for which a gross weekly pay of €306, or €276.74 net of tax, would have been due. This amounts to a loss of earnings of €1,106.96.

27. In response to questions from the Tribunal the applicant also gave evidence that friends and neighbours had helped him out [ ] when he had been unwell, and that this had gone on in an informal way for around six months. The applicant said that he would have given neighbours, especially the teenagers who had helped out, a bit of cash here and there and presents by way of gratitude to the neighbours. Pushed to put a value on this figure the applicant proffered that it was maybe in the order of €2,000. It is of course difficult for the Tribunal to assess this loss with any great accuracy because of the informality, and the likelihood that the applicant would in any event have been generous with his neighbours at various points during the time in question. It finds however that he would have spent more on these gifts and ex gratia payments during the period in question. It awards 70% of the sum claimed under this heading, or €1,400 compensation for this outlay, as it finds that this sum, on the balance of probabilities, reasonably reflects extra expenditure which directly relates to the injuries sustained as a consequence of the crime of violence.

28. The applicant submitted invoices for the following items for medical care, counselling and medicines. At the behest of the Tribunal he also submitted details of travel costs and further counselling received by him up to the date of the Tribunal. The medicines, counselling, medical care and travel to avail of such are all found by the Tribunal to comprise expenditure which directly relates to the injuries sustained as a consequence of the crime of violence and thus allowable compensation:

29. The applicant also submitted travel expenses for attendance at Court in [ ]. It is accepted that the applicant made this journey to perform his civic duty as the witness to and victim of an assault and that this attendance was an aggravating factor in respect of his stress and anxiety surrounding the criminal process. However, close consideration of the terms of the Scheme does not allow that this expense is awarded. The Scheme allows for compensation to be paid by the Tribunal for personal injury. It is not possible to characterise travel to court as an expense related to the personal injury suffered. As such the Tribunal is not in a position to award compensation for this facet of the claim.

30. No claim was made for anxiety and stress: the applicant was aware that this was not within the Tribunal’s remit per paragraph 6(e) of the Scheme, as noted above. Nonetheless, the Tribunal would like to acknowledge that this was a very real factor in the applicant’s experience of being a victim of a traumatic assault. It was extremely impressed with the applicant’s tenacity in following through the criminal process, despite it causing him such anxiety. It was privileged to hear personally from the applicant and from [ ] and wishes to acknowledge their strength and decency throughout the aftermath of the assault.

31. The Tribunal awards the sum of €4,329.96 in compensation for the criminally inflicted injuries sustained by the applicant on [ ].

Tricia Sheehy Skeffington BL, Georgina Robinson, solicitor, Roderick Maguire

Members, Criminal Injuries Compensation Tribunal

23 May 2023