Publication
23517 (13 May 2022)
From Criminal Injuries Compensation Scheme
Published on
Last updated on
From Criminal Injuries Compensation Scheme
Published on
Last updated on
Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of one member of the Tribunal pursuant to section 25 of the Scheme
Applicant: [ ]
Date of injury: [ ]
Date of application: [ ]
Case reference: 23517
Determination: The application is refused pursuant to Paragraphs 1, 11 and 15 of the Scheme which was in place at the time of the applicant’s application to the Tribunal.
1. By way of application form completed by the applicant and marked as received by the Tribunal on [ ], the applicant claims compensation for injuries which were sustained at [ ] on [ ]. The applicant stated that he was watching television in the hotel in which he was living [ ] from [ ], when he was attacked by another resident who was originally from [ ]. An argument ensued and the applicant was punched by the other resident and two teeth were knocked out and he received bruising. The Gardai were called, and the applicant was taken to hospital and subsequently attended his local GP.
2. The applicant suffered missing teeth, as well as trauma and depression. The applicant was not in work at the time, and did not incur any out of pocket expenses arising from his injuries.
3. A Report from [ ], the applicant’s GP to an ENT Registrar dated [ ] states that the applicant was the victim of an assault and was headbutted at least twice, as well as punched and slapped around the head and as a result experienced bleeding and broken teeth..
4. The applicant did not submit any further documentation or vouched expenses in support of his claim.
5. On [ ], the secretariat of the Tribunal wrote to the superintendent of [ ] Garda Station seeking a report of the particulars of the assault. No response was received by the Tribunal to this letter.
6. On [ ], the secretariat of the Tribunal wrote to the applicant stating that, in order to process his claim for loss and damage, the Tribunal would require documentary evidence to substantiate the particulars of his loss, including out-of-pocket expenses arising from any personal injuries, and that the file would be sent to a member of the Tribunal for decision in the absence of same on [ ].
7. No response was received to this correspondence.
8. The following documents were furnished to the Tribunal Member for determination:
a. Completed application form, signed by the applicant on [ ];
b. Letter from [ ] to ENT Registrar Casualty dated [ ];
c. Letter from the secretariat of the Tribunal to the applicant dated [ ];
d. Letter from the secretariat of the Tribunal to the superintendent, [ ] Garda Station dated [ ];
e. Letter from the secretariat of the Tribunal to the applicant dated [ ].
9. Arising from the foregoing a number of issues arise, which will be dealt with in turn.
10. Paragraph 1 of the scheme which was in place at the time of the application states: “The Criminal Injuries Compensation Tribunal established under paragraph 17 of the Scheme may pay ex gratia compensation in accordance with this Scheme in respect of personal injury where the injury is directly attributable to a crime of violence, or, as provided for in paragraph 4, to circumstances arising from the action of the victim in assisting or attempting to assist the prevention of crime or the saving of human life.” [emphasis added]
11. Furthermore, Paragraph 6(e) of the Scheme states that “compensation will not be payable… in so far as injuries sustained on or after 1st April, 1986 are concerned in respect of pain and suffering.”
12. Based on the application form received by the applicant, no claim is made for any expenses or losses arising from the personal injuries received during a crime of violence.
13. Therefore, the applicant is not eligible for compensation under the Scheme.
14. Paragraph 11 of the Scheme reads:
“No compensation will be payable to an applicant who has not, in the opinion of the Tribunal, given the Tribunal all reasonable assistance, in relation to any medical report that it may require, and otherwise.”
15. In determining whether a lack of reasonable assistance has been given such that compensation is not payable, consideration must be given to the scope and purpose of Paragraph 11. It effectively cuts applicants off from compensation and is thus a far-reaching provision. Its purpose is to serve as a sanction against those who do not co-operate with the Tribunal – its secondary purpose is to encourages applicants to give the Tribunal reasonable assistance.
16. The Tribunal should not rely on paragraph 11 to deny an applicant the potential for compensation in an irrational or arbitrary way. It seems logical to take into account two main factors: (i) the nature of the information or assistance sought by the Tribunal (and in particular whether its absence prevents a proper decision being made) and (ii) the frequency of requests and time elapsed wherein no adequate response has been received by the Tribunal.
17. It is noted that Paragraph 15 of the scheme which was in place at the time of the events which gave rise to this application:
“Compensation will be reduced by the value of the entitlement of the victim or claimant to social welfare benefits payable as a result of the injury and will be reduced, to the extent determined by the Tribunal, in respect of the entitlement of the victim to receive, under his conditions of employment, wages or salary while on sick leave.”
18. It is observed that without evidence of the expenses incurred, particulars of miscellaneous expenses or any documentation relating to employment-related income since the incident, there is no information upon which the Tribunal can base an assessment of compensation, having regard to the value of any social welfare benefits or employer benefits received by the applicant.
19. The documents in question are integral to the formation of any determination.
20. In [ ], the secretariat of the Tribunal wrote to the applicant inviting particulars of any injuries arising from the incident, and asking the applicant to submit any vouching documentation to support the application for compensation.
21. The Tribunal finds that because of the integral nature of the documentation sought to the decision-making process, and the elapse of time with no communication from the Applicant (despite request), that there has been a failure to give reasonable assistance to the Tribunal.
22. The application is refused.
Peter Stafford BL
13 May 2022