24033 (21 July 2023)

The Criminal Injuries Compensation Tribunal

In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted

Decision of a Single Member

Name of applicant: [ ]

Application number: 24033

Date of incident: [ ]

Date of application: [ ]

Decision outcome: The applicant is awarded the sum of €3,631.45 under the Scheme.

1. [ ] (‘the applicant’) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’).

2. In his application for compensation under the Scheme, dated [ ], the applicant stated that he had suffered injuries when he went to buy [ ]. A person at [ ] attacked him with a [ ]. The papers supplied indicate that the applicant suffered serious injuries to his [ ] hand requiring surgery and physiotherapy.

3. Paragraph 20 (formerly para 21) of the Scheme states (with emphasis added):

“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”.

4. In this instance, the incident occurred on [ ]. In normal course the application should have been submitted before [ ]. Instead, it was submitted around three years later than that, in late [ ].

5. In order to assess whether a late application is admissible, the Tribunal must deter-mine whether there are circumstances, which on its consideration, justify exceptional treatment. In this regard, the Tribunal notes that the Scheme is remedial in nature and circumstances giving rise to exceptional treatment should be interpreted in a “broad, liberal and generous manner responsive to the circumstances of the victim of crime in each case”: Bowes v CICT [2022] IEHC 703 [70].

6. In a letter to the Tribunal dated [ ] the applicant’s solicitor stated that the reason for the delay was that the due to the applicant not being aware of the Tribunal’s existence until his solicitor had informed him of it; and that even then he was reluctant to make a claim because he thought that any award would be payable by his assailant, and he felt at risk from him and his associates. This letter also discloses that the applicant is an [ ] national.

7. The Tribunal is of the view that fear and anxiety are often hallmarks of the aftermath of a criminal attack. A person seeking relief under scheme designed to assist the victims of crime should not be penalised for a natural reaction to having been assaulted. Further, the Tribunal observes that there is a foreign national would be less familiar with the procedural norms as might be expected from an Irish citizen. These are circumstances which warrant the exceptional treatment of allowing the late submission to be further considered.

8. The incident was reported to the Gardaí on [ ], the date of the incident, by the applicant’s wife thereby meeting the requirement of Para 22 of the Scheme that the matter be reported without delay. The Gardaí prosecuted the applicant’s assailant and gave a reasoned view that there was no merit to a proposed defence that the assailant had been acting in self-defence. They indicated that the applicant had assisted them and had been the victim of a serious assault.

9. From the foregoing, I am satisfied that the applicant has established, on the balance of probabilities, that he was a victim of a crime of violence and sustained personal injury which is directly attributable to that crime of violence.

10. Accordingly, I admit the application for consideration under the Scheme.

11. The applicant submitted a medical report of [ ], dated [ ]. This described the laceration injuries received by the applicant, and that it had necessitated surgery to repair extensive damage. On follow-up he attended [ ] at outpatients and also pursued physiotherapy. A further operation was required to release a scar contracture at the base of his thumb. Pain continued in the hand, and he had associated impact on mood for which he was referred to a psychiatrist. By [ ] Dr [ ] was of the view that the [ ] profundus tendon was tight and required surgical lengthening.

12. [ ] conclusion was that while movement had improved in the hand [ ]. This was unlikely to improve, in the doctor’s opinion, and would cause ongoing problems in everyday tasks.

13. The Tribunal accepts that the applicant suffered a serious injury as a result of being the victim of a crime of violence.

14. The Tribunal may make awards of compensation for expenses that are incurred as a consequence of the injury sustained by a crime of violence. This might cover the cost of treatment and any loss of earnings, for example. However the Scheme does not allow the Tribunal to make any award for general pain and suffering caused by the injury: Para 6(e) of the Scheme. The Tribunal must also ground its decisions on an evidential basis. That is to say that any losses claimed must be substantiated, at least to make out on the balance of probabilities that the loss occurred.

15. In this case no receipts for any medical treatment were submitted. It appears that the claim is based on a loss of profits incurred by the applicant in the course of his trade rather than the direct cost of employment cover for the applicant in his business.

16. The applicant submitted Revenue Assessment of income in the following sums:

17. An extract from the applicant’s business accounts on the year ending [ ] indicate that the applicant’s gross profits in [ ] were £58,513 whereas for [ ] they were £33,159. These accounts are somewhat difficult to read, as it appears that what is stated to be ‘gross profits’ is in fact gross income from sales, the costs of the business not having yet been deducted. As such, it appears that there were trading losses in [ ] of £15,280, and in [ ] of £16,836. Another set of accounts seems to indicate that losses to the end of [ ] were £11,027, and to the end of [ ] were £13,280. Accounts to year end [ ] are expressed in euro and indicate a net profit of €6,481.

18. A letter from the applicant’s [ ] dated [ ] that due to absence from work between [ ] and [ ], the gross profits of the business fell from £22,106 to £19,726, increasing losses by £2,173 as a result of the incident. It also states that the gross cost of employing a person in [ ] during the time was £2,860. It is noted that the [ ] accounts have an entry indicating that ‘wages and salaries’ came in at £3,103 that year.

19. In a letter from the Tribunal Secretariat to the applicant’s solicitor dated [ ] it was indicated that a medical report should set out how the applicant’s earning capacity was diminished as a result of the injury, and tax receipts for the three years prior to the incident. A further letter of [ ] from the Tribunal Secretariat enquires as to the accounts prepared, and notes that there does not appear to be an ascertainable ‘loss by reason of the incident on [ ].

20. On [ ] the applicant’s solicitor wrote indicating that a consultant’s appointment was still awaited and that he was endeavouring to obtain the required tax receipts.

21. A letter to the applicant’s solicitor dated [ ] enquires whether he still wishes to pursue the claim. It appears that there was no response to this letter. Given the delay in processing the claim, it would be disproportionate to attach weight to this non-engagement [ ] years post incident.

22. The position as it appears from the accounts supplied is that the applicant’s business went from loss-making before the incident into modest profit after the incident. Without more, there is no clear basis upon which the Tribunal can assess the means by which the incident impacted the applicant’s bottom line.

23. It notes that however that person was employed to cover the applicant’s absence for a period of time in the immediate aftermath of the injury sustained. The sum claimed is £2,860 and though no payslip or contract has been provided, this sum is generally corroborated by the accounts supplied. This sum expended by the applicant, who appears to be a sole trader, is a cost which can be directly attributed to the crime of violence. The Tribunal allows this expense, which in its euro equivalent is €3,631.45.

24. The Tribunal awards the sum of €3,631.45 in compensation for the criminally inflicted injuries sustained by the applicant on [ ].

Tricia Sheehy Skeffington

Member, Criminal Injuries Compensation Tribunal

21 July 2023