Publication
F/52027 (3 May 2022)
From Criminal Injuries Compensation Scheme
Published on
Last updated on
From Criminal Injuries Compensation Scheme
Published on
Last updated on
The Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted
Applicant: [ ]
Reference: F/52027
Date of incident: [ ]
Date of application: [ ]
In her application for compensation under the Scheme, received by the Tribunal on the [ ], the Applicant claimed compensation for herself and her dependents resulting from the death of her husband, [ ] by way of [ ] on the [ ] of [ ].
On the night in question, the deceased tried to intervene in an altercation between [ ] and was fatally wounded by [ ]. He died later in [ ] Hospital.
There is a Garda report on file dated the [ ], stating that [ ] was [ ] and fatally injured as he confronted [ ] who had approached a group of people standing on a public roadway. The report states that [ ] had no previous convictions.
On the [ ], [ ], the perpetrator, entered a guilty plea to the [ ] of the deceased. No compensation was paid by the offender.
The Applicant is claiming in respect of funeral expenses in the sum of €11,220, along with headstone expenses of €9,080. She is also claiming a sum of €835 for memorial cards. These expenses are vouched. The Applicant also submitted unvouched expenses of €1,000 for refreshments and €394.98 for clothes. The total sum which the Applicant is seeking is €22,529.98.
The Applicant is also pursuing a claim on behalf of the statutory dependants of the deceased, under section 47(1) of the Civil Liabilities Act, 1961. The following dependants have been identified:
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
No waivers of their statutory rights under section 47(1) of the Civil Liabilities Act, 1961 have been executed by any of the above-mentioned dependants.
Furthermore, the Applicant is claiming in respect of a loss of dependency. The Applicant has not produced an actuarial report in this respect. She has submitted an income and expenditure document for up to the [ ] of [ ], from [ ] Accountancy Services stating that the Deceased’s income was [ ] and his expenses were [ ], leaving a surplus of €21,770.
By way of letter dated the [ ], the Applicant said that her husband operated his own business [ ] until his date of death. She said that as her husband operated the business without her input ‘I am unfortunately unable to expand on the details of the earnings from same business at this time’. This letter was in response to a letter from the Tribunal dated that [ ], stating that it was in the process of obtaining an actuarial report, however, some Revenue information had not been received from the Applicant. A further letter was sent to [ ], former Tribunal Member on the [ ] asking what instructions should be issued to an Actuary if, in fact, an Actuarial report were required. A response was received from [ ] on the [ ], stating ‘the evidence is of a loss-making business operated by the Deceased which had to be sold at a loss’. Following that, a letter issued from the Tribunal to the Applicant dated the [ ], seeking further information relating to a loss of pecuniary benefit and indicating that it was for the Applicant in the particular claim to put in the details of the actual or anticipated loss going forward.
The Applicant has not received any compensation from any party or entity in respect of the death of the deceased. The Applicant did receive a widowed parent grant of €6,000 on the [ ]. The Applicant also received a bereavement grant of €850 on the [ ]. The Applicant was also granted the Widow’s contributory pension following her husband’s death. There is a letter on file from the Community Welfare Office dated the [ ], which states that the Applicant did not receive any money for funeral or other expenses relating to her husband’s death.
Paragraph 21 (of the pre-2021 scheme) 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.” Therefore, the application was late, having been received by the Tribunal on the [ ], almost two years after the event giving rise to the fatal injuries.
The Applicant, in her application, stated that she was under severe pressure at the time of the incident. She said that she had to sell the deceased’s business at a loss as she could not service the loans. Furthermore, the Applicant said that her existential situation was being undermined as threats were being made on her life. This assertion is corroborated by a Garda Report dated the [ ]. Consequently, the Applicant said that she was under the care of her physician who diagnosed her with depression, fatigue and exhaustion.
The burden of proof rests on the Applicant to prove that her application justified exceptional treatment pursuant to paragraph 21 of the Scheme. The threshold criteria to justify exceptional circumstances is not an easy burden to discharge. However, the Tribunal finds that the Applicant’s circumstances were unique in the sense that not only was her husband killed unexpectedly but she, herself, then had to deal with death threats to her own life. The Applicant’s evidence was that she was depressed and exhausted as she had to sell her husband’s business quickly, while also trying to deal with the shock of her husband’s death coupled with the continuing threat on her own life, which is corroborated by a Garda report. Considering all the above stands of evidence the Tribunal finds that the Applicant has discharged the burden and proven that her application is one that justifies exceptional treatment.
The Tribunal finds that the Applicant’s claim for loss of dependency has not been proven. She provided contradictory evidence in this respect. Accounts from [ ] for her husband’s business were provided which showed that the Deceased made a surplus of €21,770. However, there were no accounts or P60s for [ ]. The Applicant, in a letter to the Tribunal in [ ], stated that her husband operated the business without her input and that she was, unfortunately, unable to expand on the details of the earnings from the business at that time. It is noted that on the [ ], the Tribunal sought extra revenue information from the Applicant. However, this was not forthcoming. The Tribunal also notes that the Applicant, herself, stated that she had to sell the business at a loss. The Tribunal wrote to the Applicant’s Solicitor on the [ ], seeking confirmation as to the extent of the Applicant’s claim in relation to loss of earnings and dependency. No reply was made to this letter. The Tribunal wrote a further letter to the Applicant’s Solicitor on the [ ], forwarding the letter of the [ ], and asking if the Applicant intended pursuing her application. It stated that if no reply were received by the [ ], that the Tribunal would decide upon the application. The Tribunal received a response form [ ] on the [ ], outlining the expenses and accounts already referred to and stating that a Revenue Assessment for [ ] and [ ] were already submitted.
Having assessed all the information put before the Tribunal in respect of the loss of dependency claim, the Tribunal finds that the Applicant has not put a clear and coherent case forward, on the balance of probabilities. While there are Revenue Assessments for [ ] and [ ], there is nothing for [ ]. Furthermore, no clear liquidated sum of money was claimed by the Applicant. The Applicant’s evidence was that she sold the business at a loss, and she said that she did not have any information in relation to the details of the business earnings at that time. The Tribunal finds that in the absence of a clear claim being put before the Tribunal, in this respect, and there is no evidence to suggest that there was a loss of dependency either at the time of death or into the future.
The Tribunal accepts, on the balance of probabilities, that the deceased was the victim of a crime of violence. He was [ ] in a public place, for trying to intervene in an [ ]. His assailant was subsequently charged and pleaded guilty to [ ]. Paragraph 14 of the scheme does not arise as the Garda report states that the Deceased did not have previous convictions.
The Applicant has vouched and proven her claim in respect of most of the funeral and headstone expenses claimed and accordingly, the Tribunal awards her the sum of €21,135 made up as follows:
The Applicant also submitted unvouched expenses of €1,000 for refreshments and €394.98 for clothes. The Tribunal makes no award in relation to these. It is noted that the Applicant did get a widowed parent grant and a Bereavement Grant, there is a letter on file from the Community Welfare Office dated the [ ] which states that the Applicant did not receive any money for funeral or other expenses relating to her husband’s death. In the circumstances, the Tribunal will not make any deductions from the expenses in this respect.
Paragraph 6 of the (pre-2021 Scheme) states that “Subject to the limitations and restrictions contained elsewhere in this Scheme, the compensation to be awarded by the Tribunal will be on the basis of damages awarded under the Civil Liabilities Acts. Therefore, where a claim is made under the Fatal Injury Scheme, the Tribunal must have regard to Section 49(1A)(b) of the Civil Liability Act, 1961. While it would be impossible to financially compensate a family for such a tragic loss, Section 49(1A)(b) of the Civil Liability Act, 1961 provides for a modest maximum payment of €25,394.76 to the surviving dependants in respect of compensation for mental distress resulting from wrongful death (hereinafter called the “solatium”) arising before the [ ].
The Tribunal finds that the Deceased’s wife should be awarded €10,394.76, the Deceased’s [ ] should be awarded €4,000, the Applicant’s parents should be awarded €1,000 and [ ] should be awarded €1,000.
The Tribunal makes a total award of €25,394.96 plus €21,135 which amounts of €46,529.76 and which is comprised of the following awards:
Applicant, [ ] - (€10.394.76 solatium and funeral and headstone expenses of €21,135)
[ ] (€4,000- Solatium)
[ ] (€4,000- Solatium)
[ ] (€1,000- Solatium)
[ ] (€1,000- Solatium)
[ ] (€1,000- Solatium)
[ ] (€1,000- Solatium)
[ ] (€1,000- Solatium)
[ ] €1,000- Solatium)
[ ] (€1,000- Solatium)
The Applicant is directed to repay the funeral and headstone expenses to any other persons who contributed to discharge them.
The Tribunal acknowledges that the Applicant and her family have suffered greatly as a result of the death of their loved one and expresses its sincere condolences in this respect.
Majella Twomey
Chairperson, Criminal Injuries Compensation Tribunal
3 May 2022
Amendment to decision in relation to Solatium awarded:
By way of decision dated 3 May 2022, the Tribunal found that the Deceased's wife, in this case, should be awarded €10,394.76 (Solatium), the Deceased's [ ] should be awarded €4,000 each (Solatium), the Applicant's parents should be awarded €1,000 (Solatium) each and the Applicant's [ ] should be awarded €1,000 each (Solatium).
Following the issue of the decision, the Applicant's Solicitors [ ] wrote to the Tribunal on the [ ], to inform it of the fact that the Deceased's [ ] is now deceased. [ ] had been awarded €1,000 in Solatium in the original award.
In circumstances where [ ] is now deceased, the Tribunal amends its original award and re-distributes the €1,000 which had been awarded to [ ], to be divided between [ ] of the deceased. The Tribunal now awards a further €5,000 to [ ] along with a further €500 to [ ].
Recap of amended award:
The Tribunal makes a total award of €25,394.96 plus €21,135 which amounts of €46,529.76 and which is comprised of the following awards:
Applicant, [ ] (€10.394.76 solatium and funeral and headstone expenses of €21,135)
[ ] (€4,500 -Solatium)
[ ] (€4,500 -Solatium)
[ ] (€1,000 -Solatium)
[ ] (€1,000 - Solatium)
[ ] Deceased [ ] (€0 - Solatium)
[ ] (€1,000 - Solatium)
[ ] €1,000 - Solatium)
[ ] €1,000 - Solatium)
[ ] €1,000 - Solatium)
The Applicant has already been directed to repay the funeral and headstone expenses to any other persons who contributed to discharge them.
Majella Twomey
Chairperson, Criminal Injuries Compensation Tribunal
29 July 2022