Publication
52806 (4 July 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: 52806
Decision: Pursuant to Paragraphs 21 and 11 of the Scheme which was in place at the time of the applicant’s application to the Tribunal, the application is refused.
1. [ ] (“the applicant”) has made a claim to the Criminal Injuries Compensation Tribunal (“the Tribunal”) for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (“the Scheme”).
2. The application form was signed by the applicant on [ ] and sent to the Tribunal by his legal representative under cover of letter dated [ ]. The application form was stamped as received by the Tribunal on [ ].
3. In his application form, the applicant stated that he was injured on [ ] by [ ] in [ ]. The applicant stated that, as a result of an assault sustained during an unprovoked attack, he suffered head and dental injuries and underwent treatment at [ ] Hospital [ ] and from his dentist, [ ].
4. In support of his application, the applicant submitted a report from Dr [ ], his dentist, dated [ ]. In it, Dr [ ] reported that the applicant had attended the dentist on [ ] for a consultation following the incident and reported that he had been assaulted, sustaining injury to his face and teeth. The report states that the applicant had attended [ ] Hospital [ ] on the night in question, and was assessed for facial fractures but had sustained none.
5. With respect to the injury to his teeth, the dentist noted significant damage to a number of his teeth, and the applicant underwent treatment on [ ] and [ ]. The dental report states that the applicant would require two more visits to the dentist for further work, and the total sum for the cost of all treatment would amount to €2,700. The dental report also stated that this new, post-assault, dental work would need further restoration in around 10 years, and that, as a direct result of the injuries sustained, may need further treatment into the future.
6. The applicant’s application form to the Tribunal also included his medical records obtained by his legal representative through a Freedom of Information Act request. The records submitted to the Tribunal state that the applicant attended Accident and Emergency Department at [ ], and suffered injury to his eye and the left side of his face, and injury to his nose. The records also confirm the applicant’s damage to his teeth
7. On [ ], the Secretariat of the Tribunal wrote to the solicitor for the applicant to acknowledge receipt of the application and to request original supporting receipts in respect of payments made by the applicant with respect to treatment for his injuries.
8. On [ ], the Secretariat of the Tribunal wrote to the Superintendent of [ ] Garda Station for a Garda Report of the incident which gave rise to the applicant’s injuries. The Tribunal has had the benefit of a Garda Report dated [ ] stating that the applicant was assaulted at around [ ] on [ ], and applicant had waited for six hours to be assessed in Accident and Emergency but left without being fully assessed.
9. The Garda Report, based on an interview with the applicant, states that on the night in question, the applicant reported that he had been looking for a taxi on [ ] while his friends went to [ ]. His friends had got into an altercation with [ ]. The applicant attempted to get his friends away from the commotion, but received a punch in the face.
10. The Gardai spoke to the applicant’s friends who were present but they did not know who had assaulted the applicant. Gardai spoke to the assailant, [ ], who alleged that he thought he was going to be assaulted in the melee and reacted first, punching the applicant.
11. The Garda Report suggests that “a lot of alcohol had been consumed which was the main cause of the argument.”
12. The applicant’s assailant was brought before [ ] and charged with Assault Causing Harm. Sentencing was adjourned pending a behaviour report being prepared, and the assailant was ordered by the Court to pay the applicant between [ ] and [ ] to the applicant. The Garda Report states that the assailant had until [ ] to pay compensation.
13. There is no information before the Tribunal to suggest that this was not paid to the applicant. There is also no information before the Tribunal to determine the level of compensation which was paid to the applicant by the assailant.
14. On [ ], the solicitor for the applicant wrote to the secretariat of the Tribunal stating that the applicant continued to have dental difficulties and that the applicant would be obtaining a future dental plan in the near future, and in receipt thereof, a copy would be supplied to the Tribunal. There is no dental plan on record before the Tribunal.
15. On [ ], the secretariat of the Tribunal wrote to the applicant’s solicitor asking if the applicant wished to pursue his claim, and, if so to submit the documentation sought, including receipts to vouch his claim for compensation for out-of-pocket expenses. The applicant was informed that, in absence of same, his file would be sent to a Member of the Tribunal for determination. No response to this letter is on file.
16. The following documents were furnished to the Tribunal Member for determination:
a. Completed application form, signed by the applicant on [ ] and cover letter from the applicant’s solicitor dated [ ];
b. Dental Report from Dr. [ ] dated [ ];
c. Applicant’s medical records relating to his attendance at Accident and Emergency on [ ];
d. Garda Report dated [ ];
e. Letter from secretariat of the Tribunal to applicant dated [ ] seeking documentary evidence to support the applicant’s claim including original receipts of payments by the applicant as a result of his injuries;
f. Letter from applicant’s solicitor dated [ ] referencing a forthcoming dental plan;
g. Letter from Tribunal dated [ ] to the applicant’s solicitor asking the applicant to submit outstanding information, including original vouching documentation relating to out-of-pocket expenses and in absence of same, his file would be sent to a Member of the Tribunal for determination.
17. Arising from the foregoing, a number of issues arise which will be dealt with in turn.
18. Paragraph 21 of the scheme which was in place at the time of the application 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. In the case of an injury arising out of an event which took place before the commencement of the Scheme, the application must be made not later than three months from the date of the commencement (subject, also, to the foregoing exception)".
19. In his application, the applicant stated that he was injured on [ ], requiring him to make an application to the Tribunal before [ ]. However, while the application form was signed by the applicant on [ ], it was not submitted to the Tribunal by the applicant’s legal representative until [ ], almost a year after the injuries occurred, and nine months outside the required time for submission of the application.
20. Question 2(f) of the application form states: “If it is over three months from the date of incident to date of submission of application, please give reasons for delay as requires [sic] under Article 21 of the Scheme.” The applicant did not provide any reasons why his application form was not submitted to the Tribunal within the requisite three-month period. Further, there is no evidence before the Tribunal from the applicant’s legal representative to explain the delay between the applicant signing the application form and it being sent to the Tribunal.
21. It is clear from the Dental Report which the applicant sent to the Tribunal, dated [ ], that, within three months of the injury occurring the applicant had undergone two dental operations and the extent of his injuries and the nature of further necessary dental procedures were known to him.
22. It is also clear from the documentation before the Tribunal that, by [ ], the applicant’s legal representative had sought and obtained the applicant’s medical records under the Freedom of Information Act. There is also no information before the Tribunal to explain why these medical reports, sent to the applicant’s legal representative in [ ] were not submitted to the Tribunal until [ ].
23. Taken together, there is no evidence before the Tribunal to show that there are any circumstances which warrant the granting of exceptional treatment in this case, and why the applicant’s claim should be admitted despite being outside of the required three-month time limit.
24. Therefore the application must be refused, pursuant to Paragraph 21 of the Scheme.
1. 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.”
2. 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 encourage applicants to give the Tribunal reasonable assistance.
3. 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.
4. Without evidence of expenses actually incurred by the applicant as a result of his injury, there is no information upon which the Tribunal can base an assessment of compensation, having regard to the payments made by the applicant in respect of dental and other surgery required.
5. Original vouched medical expenses and other receipts relating to payment of out-of-pocket expenses arising from the applicant’s injuries are integral to the formation of any determination.
6. The applicant has submitted a dental report in which the applicant’s dental surgeon has set out the likely total future cost of his medical treatment but the applicant has not submitted original receipts for the dental treatment which has been performed.
7. On [ ], the secretariat of the Tribunal wrote to the applicant’s legal representative stating that when the applicant’s injuries have stabilised, to send to the Tribunal original receipts in respect of payments that the applicant had to make as a result of his injuries. The applicant’s legal representative was again asked for these documents by the secretariat of the Tribunal on [ ].
8. No response was received to either of these requests.
9. The Tribunal finds that because of the integral nature of the documentation sought to the decision-making process, there is no information before the Tribunal to determine what out of pocket expenses were incurred by the applicant, and therefore the level of compensation which should be paid to the applicant.
10. Therefore applying Paragraph 11 of the Scheme, the application must be refused.
25. Pursuant to Paragraphs 21 and 11 of the Scheme which was in place at the time of the applicant’s application to the Tribunal, the application is refused.
Peter Stafford BL
4 July 2022