Publication
24119 (26 October 2022)
From Criminal Injuries Compensation Scheme
Published on
Last updated on
From Criminal Injuries Compensation Scheme
Published on
Last updated on
Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of Appeal Tribunal
Application number: 24119
Name of applicant: [ ]
Date of incident: [ ]
Date application received: [ ]
Hearing date: [ ]
In attendance: Marc B. Murphy BL (Tribunal Member, Chair), Nora Pat Stewart BL (Tribunal Member), Georgina Robinson, Solicitor (Tribunal Member), Anne Marie Treacy (Secretary to the Tribunal)
[ ] (hereinafter ‘the Appellant’)
[ ]
[ ]
[ ] SC
[ ], Solicitor [ ])
[ ], Solicitor ([ ] Partners)
Decision: No award.
[ ] (‘the Appellant’) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’) arising out of an incident which occurred at [ ] public house on [ ].
The Appellant was born on [ ] and was [ ] years old at the time of the incident. The Appellant was a hard-working man who had been employed as a [ ] for [ ] and also worked as a [ ]. The Appellant is a man of good character with no previous criminal convictions. The Appellant is [ ].
[ ]. The Appellant visited [ ] public house where he ate a meal and the Appellant describes drinking beer and spirits during the afternoon and evening of [ ]. Sometime around 1am that night the Appellant became involved in a physical altercation with another customer. There is conflicting evidence as to what exactly occurred, but it appears that the Appellant [ ] and ended up lying down in the yard outside. Several young men, who were not involved in the earlier altercation, brought the Appellant home in their van and he was placed in his bed.
The Appellant complained of a lack of sensation in his legs the following morning. The Appellant was brought to [ ] University Hospital and transferred from there to the [ ] Hospital in [ ]. The Appellant was diagnosed as having suffered catastrophic, life-changing spinal injuries. The Appellant is now paralysed and confined to a wheelchair and require significant ongoing care.
The incident was investigated by An Garda Síochána and a file was sent to the Director of Public Prosecutions who directed that no prosecution would be brought.
The Appellant instructed the firm of [ ] & Co to bring proceedings on his behalf against [ ].
The Appellant’s application for compensation for his injuries was received by the Tribunal on [ ], almost six years post-incident. The Tribunal wrote to the Appellant’s solicitors on [ ] and [ ] seeking an explanation for the Appellant’s late application for compensation, drawing their attention to paragraph 21 of the Scheme, and seeking confirmation that the Appellant wished to proceed with his claim in circumstances where he had compromised a civil action arising out of the incident. It appears from the file that no response was received to this correspondence. [It appears that the Appellant’s file went into abeyance for several years at this juncture].
On [ ] the Appellant’s application was sent to a Tribunal Member for decision. The Member noted the lack of correspondence on file and invited [ ] to deliver written submissions setting out the reason for the late application and why the Appellant’s application would justify exceptional treatment in light of Paragraph 21 of the Scheme. By letter dated [ ] [ ] responded to the Tribunal’s request for submissions, setting out in detail the circumstances leading to the Appellant’s claim being compromised in [ ] ‘for a fraction of its value’. [ ] further set out the catastrophic consequences for the Appellant and his family of the injuries that he suffered arising from the incident on [ ]. Finally it was confirmed that the Appellant’s wife had originally contacted [ ] in respect of the Appellant’s injuries in or around [ ] (within a matter of weeks of the injuries) but that it was decided to wait until the Garda investigation was complete before proceeding with any claim. It was submitted on the Appellant’s behalf that these circumstances together constitute ‘exceptional’ circumstances such as would allow the Tribunal to entertain the Appellant’s claim for compensation.
A single member first instance decision on the Appellant’s case was subsequently made on [ ]. The Appellant’s application was refused on the grounds there were no circumstances in the case that justified exceptional treatment for the Appellant’s claim such as would allow it to be considered outside the time limit imposed by the terms of the Scheme.
The Appellant exercised his right under Article 25 of the Scheme to appeal the first instance decision by way of hearing by three members of the Tribunal. The appeal was heard in-person (at the Appellant’s request) on [ ]. The Tribunal considered the case afresh (or de novo), taking into account the papers submitted by and on behalf of the Appellant, oral evidence from the Appellant and the [ ] family, and submissions made by the Appellant’s legal advisors.
The Appellant and his family constituted most impressive and truthful witnesses. The Tribunal listened carefully to their evidence and there can be no doubt that the Appellant suffered catastrophic injuries which have profoundly affected his quality of life and also significantly affected his family who provide much of the Appellant’s care. The Tribunal was left in no doubt that this is a particularly difficult and tragic case.
The Appellant and his family gave evidence of the incident itself and the subsequent diagnosis and treatment of the Appellant’s injuries. It was noted that the Appellant spent a considerable period in hospital, remaining in the [ ] Hospital until [ ], and subsequently being transferred to the [ ] Hospital where he remained until approximately [ ] when the Appellant was discharged home.
[ ] gave evidence that she contacted [ ] in or around [ ] in relation to seeking recourse for the Appellant’s injuries. At that stage it was known that the Appellant had suffered catastrophic injuries and would never work again. It was Mrs. [ ] evidence that she was told that the solicitor ‘would look into it’ and revert in due course. However it transpires that High Court proceedings were not instituted until [ ], almost [ ], post incident and no application for compensation was made to this Tribunal.
[ ] was instructed to take over the Appellant’s legal representation in [ ]. Notwithstanding the difficulties that occurred in respect of the transfer of the file from [ ] to [ ], the Appellant’s new solicitors had taken over carriage of the Appellant’s civil proceedings by [ ]. Notwithstanding this, an application for compensation was not lodged with the Tribunal until [ ].
Despite the Tribunal’s. correspondence, set out above, in [ ] and [ ], no meaningful steps seem to have been taken to engage with the Tribunal or indeed to explain the reason for the late application until [ ], almost [ ] years after the date of the incident.
The Gardaí were notified of the incident either at the time the Appellant’s injuries accrued or shortly thereafter. The Appellant cooperated fully with the Garda investigation but ultimately no prosecution was directed by the Director of Public Prosecutions.
Whilst it is a condition of eligibility for the Scheme that an applicant notify the Gardaí of an injury suffered as a result of an allegedly criminal act and that s/he cooperate with any subsequent investigation, it is never the case that an applicant must (or should) wait until any investigation or prosecution has concluded before making an application for compensation. Neither the making of a complaint to the Gardaí, nor the actual or contemplated instigation of civil proceedings, stop time for the purposes of the Scheme. It is clearly the intention of the Scheme that Garda investigations and/or the bringing of civil proceedings for compensation run parallel to the provisions of the Scheme. In fact, the Scheme specifically addresses this scenario where it sets out at paragraph 5 that any compensation received must be considered by the Tribunal when deciding on any application for compensation.
Article 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….’
In the instant case the Appellant and his legal advisors have urged the Tribunal to take into account the severity of the Appellant’s injuries, the time taken for the Garda investigation, the civil proceedings (which the Appellant’s legal advisors advise the Tribunal settled for significantly less than full or fair value) and administrative difficulties for the Appellant’s current legal advisors in taking over carriage of all proceedings from the Appellant’s previous solicitors, in deciding whether the Appellant can avail of ‘exceptional treatment’.
Having considered each of these submissions the Tribunal must reject each in turn. The Tribunal takes no pleasure in noting that the Appellant’s catastrophic injuries are not, in and of themselves, ‘exceptional’ in the sense that persons do suffer broadly similar catastrophic injuries from time to time, be it by way of vehicular accidents, workplace accidents or arising out of a dispute in a licenced premises as in the instant case.
Having considered all paperwork submitted and listened to both evidence and legal submissions from the Appellant, his family and his legal representatives the Tribunal cannot ignore the fact that the Appellant had several opportunities where he, or his representative, could have notified the Tribunal of a claim, if not actually submitted an application for compensation, including at [ ] when [ ] contacted [ ] and in [ ] when the Appellant instructed [ ] to take up his file from his previous solicitor. It is unfortunate that very little, in the context of this application for compensation, appears to have been done to advance matters between [ ] and the Tribunal contacting the [ ] in [ ].
The Tribunal therefore cannot be satisfied that the circumstances of this late application justify exceptional treatment, within the meaning of Article 21 of the Scheme.
For the reasons set out above, the Tribunal makes no award.
Marc B. Murphy BL
26 October 2022