Publication
52916 (22 February 2023)
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 (1) of Compensation for Personal Injuries Criminally Inflicted
Appeal
(1) The Scheme in operation at the time application was received by the Tribunal.
Applicant/appellant: [ ] Ref: #52916
Present:
For the Tribunal:
For the applicant/appellant:
[ ], Appellant (hereinafter “the Applicant”)
[ ], Representative friend of the Applicant.
1. [ ] (“the Applicant”) has made a claim for compensation under the Scheme for Personal Injuries Criminally Inflicted in respect of an incident which occurred on [ ] as a result of which he sustained personal injuries.
2. A first instance decision, made by a single Member, issued from the Criminal Injuries Compensation Tribunal (“the Tribunal”) on [ ]. The Applicant appealed that decision and pursuant to paragraph 25 of the Scheme, a three Member panel of the Tribunal was constituted to consider his application on a de novo (afresh) basis. The Appeal hearing took place on [ ] and was held remotely by video conferencing platform, with the agreement of the Applicant. The Tribunal had the benefit of the Applicant’s 81-page Appeal file, a 49-page Booklet of Supporting Documentation and a 12-page Submission document, in addition to receiving the direct oral evidence of the Applicant and submissions from the Applicant’s representative, [ ].
3. The Applicant’s claim is that he came out from the [ ] his [ ] in the [ ] where he lives in the early hours of [ ] to find [ ] was damaged and in response to asking a person close by if he was responsible for [ ], the Applicant was assaulted. The Applicant claims that he did not know what happened at the time, his first memory was being in hospital, where he remained until [ ] . The Applicant gave a full and detailed statement to the Gardaí on [ ] of the events leading up to the visit to the pub and the injuries he was found to have sustained to upon admission to hospital: “I have been informed by doctors that I have the following injuries, a brain injury, which consists of a fractured skull; I have a gash to the back of my head. I am deaf in the right ear, my right jaw was sore but not bruised. The doctor told me I would me [sic] nauseous and have a poor appetite for some time, I cannot drive my car. I am going back to hospital for a review at 9.30am next Monday. …This incident has been very traumatic for my wife and children.”
4. In a Garda Report, received by the Tribunal and dated [ ], the Gardaí confirmed that they attended at the scene in the aftermath of the incident. The Gardaí reported that following an interaction with one male, who struck the Applicant once into the head, the Applicant fell to the ground and was removed to hospital by ambulance. The Applicant’s assailant was prosecuted for a Section 3 (2) Assault and having entered a guilty plea, the matter was concluded at [ ] Circuit Court on [ ]. The Gardaí also noted in their Report that the Applicant had received €10,200 in compensation from his assailant.
(2) Non-Fatal Offences Against the Person Act, 1997.
5. Arising out of this incident and the injuries suffered by the Applicant, an application was made for compensation under the Scheme, which was received by the Tribunal on [ ]. The Applicant is claiming compensation for medical expenses, including future medical expenses, as well as for loss of earnings.
6. The Tribunal accepts that the Applicant was the victim of a crime of violence arising out of the incident which occurred on [ ] and that he suffered personal injuries directly attributable to that crime of violence (satisfying paragraph 1 of the Scheme). The Tribunal also accepts that the assault was reported to the Gardaí without delay (satisfying paragraph 23 of the Scheme). As regards the obligation to submit an application in a timely manner, 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 …”
7. This application was received by the Tribunal on [ ] which was eight months and two weeks after the three-month time period allowed, in normal course, for submission of applications. By reason of paragraph 21 therefore, this application ought to have been received by the Tribunal on or before [ ].
8. It is clear from the wording of paragraph 21 however, that when applications are received outside of the prescribed three-month time frame, the Tribunal can determine if the circumstances for delay in submitting that application are such as to justify exceptional treatment of that application, and thus accept it for further consideration. In this regard applicants are assisted by section 2 (f) of the application form, which provides an opportunity to set out reasons for delay (where applicable) in submitting an application.
9. In the instant case, the Applicant has stated, at section 2 (f) of his application form, that the reasons for his delay in submitting his application were as follows:
“I was not aware of any compensation that I am entitled to until now. As a result of the injury I received I am not as sharp as I was.”
10. Earlier on his application form, at 2 (e) the Applicant stated:
“This application was originally logged by you by phone on Monday [ ]. I am sorry for the late application and I don’t think I could have filled this Form before now.”
11. The Tribunal notes that the Applicant, at the time of making his statement to the Gardaí on [ ], gave the Gardaí the authority to take up his medical records. In the said Garda Report the Gardaí have set out the injuries sustained by the Applicant, according to Dr [ ], Consultant Neurosurgeon, who, it appears, treated the Applicant upon his admission following the incident: “ Moderate head injury with bilateral frontal and left temporal lobe contusions, think left subdural haematoma, undisplaced fractures through the skull base and occipital bone with the local blood and prolonged 48-hour period of impaired consciousness”. The Gardaí also recorded that the Report stated that there may be permanent deafness in the Applicant’s right ear.
12. Notwithstanding that the Applicant had, it appears, the ability to give a very clear and detailed statement to the Gardaí upon his discharge from hospital, just five days after the incident and injuries complained of, on the basis of the Applicant’s submissions as set out at section 2 (e) and (f) of his application form, the reported findings of Dr [ ] as set out in the Garda Report received by the Tribunal, and in particular, the oral evidence given at hearing by the Applicant, the Tribunal considers that the delay in submitting this application does warrant exceptional treatment and thus deems it amenable to further consideration.
13. The Applicant was unable to give cogent evident at hearing. The Tribunal had two reports before it, one from the Applicant’s GP practitioner Dr [ ], of [ ], dated [ ]. The Applicant has been a longstanding patient of this practice. Dr [ ] reported that since the incident and injuries sustained “[ ] had significant brain injury with difficulty in calculating or higher executive functions. …He gives poor recent memory and his grasp of concept is poor.” Dr [ ] reported that the Applicant’s memory had stabilised albeit at a lower functional level and that he had adapted to the constraints created by his head injury. Dr [ ] reported that the Applicant is independent in activities of daily living and can perform within constraints in instrumental activities of daily living. Dr [ ] further noted that the Applicant had had tremendous input from [ ]. Dr [ ] also set out some of the other medical issues that the Applicant suffered from which were unrelated to the injuries he sustained as a result of the incident. The Applicant underwent a hip replacement in [ ]; was diagnosed with [ ] of his [ ] in [ ]; was diagnosed with [ ] in [ ] which was now medical under surveillance; and, the Applicant also suffered from [ ], for which he took medication. The Applicant’s representative referenced that the Applicant suffered from depression, though for what period of time, was not advanced, nor was there any reference to this in the medical reports furnished.
14. The Applicant also furnished the Tribunal with a Report from Consultant in Rehabilitation Medicine, Dr [ ], dated [ ]. Dr [ ] reported that the Applicant had a very significant traumatic brain injury that has affected all aspects of the Applicant’s life some of which he was able to compensate for but others such as running a business and working have had a major impact upon him. Dr [ ] queried, on foot of the Applicant’s presentation, as to whether he also suffered from [ ] and noted that he would refer the Applicant to a neurological occupational therapist in this regard. When this was put to the Applicant at hearing, he could not recall whether he had attended anyone in this respect.
15. The Applicant gave oral evidence during the hearing. He outlined his skill set and business acumen prior to the injury he sustained on [ ] and stated that after the injury he found it impossible to conduct even a small percentage of what he had done prior to the incident and the injuries he sustained. The Applicant stated that even if he could remember what needed to be done, he could not do it. The Applicant informed the Tribunal that for a long time after the injury he spent much of his time sleeping sometimes up to 16/20 hours per day, that the fatigue was terrible, and that he had no hearing in his right ear, no sense of smell or taste, though the later returned sometimes. The Applicant gave evidence that he was seen a couple of times by Dr [ ], ENT specialist, who told him that a nerve had been broken and that it may or may not come back, that this was what he could expect, and, that he could expect to sleep a lot following a brain injury. The Applicant also gave evidence to the Tribunal that he was deaf in his right ear.
16. The Applicant gave evidence that he attended [ ] services for 2 years, He could not recall who had referred him to [ ], he had gone because he had been told to go, he said. It was like going to school, the Applicant informed the Tribunal, it was helpful to be shown what to do. The Applicant gave evidence that he would see his colleagues in [ ] and how they were and would think to himself, is that what I am like now? It makes you accept the way you are, noted the Applicant and learn to live with the injury. The Applicant stated that he spent two full years at [ ] but that he could not have continued on for a 3rd or 4th year. He had gained so much by then, he stated, for example, whilst he had started out being driven there, but by the end of his time at [ ] he was able to drive himself. It gave the Applicant coping strategies, submitted his representative.
17. The Applicant informed the Tribunal that he had tried to work since the incident and injuries sustained, but he got things wrong and sometimes created more work for others in the process and that his employment invariably did not continue. The Applicant gave examples of such attempts at employment, including working in his wife’s [ ] as a [ ], as a [ ] for another entity, and later, in a centre for [ ] in [ ], [ ], but none of these jobs had worked out and he had been let go from them. The Applicant was able to live independently however and now had the ability to engage in long distance driving, without issue such as from [ ] to [ ], which he had done once three times in one week, he informed the Tribunal.
18. The Applicant said that whilst he had separated from his wife in [ ], it was an amicable separation and that his wife and children were very supportive of him, that he lived now independently in [ ] that they owned nearby, but that his wife and family were never far away. His friends, he told the Tribunal, also kept in touch with him.
19. The Applicant has furnished the Tribunal with a summary of his compensation claim:
Loss of Earnings: €257,414
Medical Expenses €5,471.50
Future Medical Expenses €27,450
Less Compensation received €10,200
20. The Applicant makes a claim for past and future loss of earnings in the sum of €257,414. The Applicant’s claim has been calculated on the basis that he would have worked up to [ ], that is, 69 years of age, in circumstances, as submitted by his representative, that statistically, self-employed individuals work beyond the age of 65/66, and this is on the basis of the gross salary the Applicant earned in [ ], of in or around €26,766. Calculations for past and future loss of earnings have been provided by an accounting consultant, not by an actuary. The Tribunal notes the following in relation to both past and future income calculations: a discrepancy between past social welfare benefits which actually accrued to the Applicant in [ ] and what has been recorded in the calculations provided; the level of past income earned, as claimed, has not been vouched at all; the income from [ ] has been calculated on a notional basis with a set inflationary increase afforded to each year regardless; no deductions have been made from the notional yearly income calculated, to reflect absences from work due to illnesses suffered since [ ] by the Applicant, which were unrelated to the injuries sustained in the incident, as set out in his GP’s medical report; no reduction has been made in respect of future income, to reflect the uncertainty in the Applicant’s work prospects and other potentially relevant factors, as recognised in [ ] and the case law that has followed on from same from the Superior Courts in more recent years.
21. The Applicant claims the sum of €5,471.50 for past medical expenses, including for attendances with ENT Consultant, Dr [ ], Consultant Neurologist, Dr [ ], attendance at his GP, and for hearing devices through Hidden Hearing. All of these expenses have been vouched.
22. The Applicant claims the sum of €27,450 for future medical expenses. This sum comprises the net sum that the Applicant envisages he will have, in order to pay for five future replacement hearing aids, based on a life expectancy of 83.3 years. (3)
(3) According to the most recent actuarial mortality data for male life expectancy from CSO Irish Life Table No 17 dated 7 July 2020.
23. The Tribunal accepts that the Applicant suffered a head and brain injury in the incident which occurred on [ ]. The Tribunal, having heard the evidence of the Applicant at hearing, in tandem with the documentary evidence, including the helpful submissions prepared by the Applicant’s representative, accepts that the effect of the injuries sustained in this incident have been life changing for the Applicant, and also for his family. The Tribunal accepts the medical evidence presented to it and notes that the oral evidence given at hearing supplemented the documentary evidence, thus bringing clarification to a number of omissions on the paper file as presented. The Tribunal found the Applicant to be an honest and compelling witness. To that end, the Tribunal makes the following award:
24. Whilst the Tribunal is prepared to accept the calculation of figures for loss of earnings, presented on behalf of the Applicant in the sum of €257,414, this is a qualified acceptance on the basis of all observations of the Tribunal set out in paragraph 20 above. Therefore, the Tribunal considers that the sum of €257,414, must be reduced in the amount of 20% in respect of past and future earnings claimed. On that basis the €257,414 claimed by the Applicant is reduced by 20% (€51,482.80), resulting in an award of €205,931.20.
Award of €205,931.20
25. All vouched and awarded in full.
Award of €5,471.50
26. The Applicant seeks five replacement hearing aids into the future, at a cost of €5,490 net per set. This is on the basis that it is submitted that the life expectancy of a male according to statistics is set at 83.3 years. The Tribunal considers however, on the basis of the Applicant’s own medical history put before it, that it should award the Applicant the cost for four, not five, sets of such hearing aids. €27,450 - €5,490 = €21,960
Award of €21,960
Total: €233,362.70
27. The Applicant acknowledges that he received compensation of €10,200 from his assailant following conviction. Paragraph 16 of the Scheme states:
“The Tribunal will deduct from the amount of an award under this Scheme any sums paid to or for the benefit of the victim or his dependants by way of compensation or damages from the offender or any person on the offender’s behalf following the injury.”
28. In the instant case, paragraph 16 of the Scheme is engaged. Consequently, the award of €233,362.70 must be reduced accordingly.
Total award: €223,162.70
The Tribunal acknowledges the life changing effect of the incident upon the Applicant and on his family and wishes him well into the future.
Dated the 22nd day of February 2023
Nora Pat Stewart BL
For and on behalf of the sitting members of the Tribunal.