51580 (14 February 2024)

Criminal Injuries Compensation Tribunal

In the matter of an appeal under paragraph 24 of the scheme of compensation for personal injuries criminally inflicted

Decision of an Appeal Panel

In private

Name of appellant: [ ]

Application number: 51580

Date of incident: [ ]

Date of application: [ ]

Heard on: [ ]

Location: The Appeal was conducted remotely in accordance with Instruction no. 2 issued by the Tribunal under paragraph 19 of the scheme.

Appeal Panel: Damian Sheridan B.L. (Chair): Patricia Sheehy Skeffington B.L. and Elizabeth Davey B.L.

Persons present and capacity: The Appellant [ ] was present and was represented by [ ], Solicitor of [ ] Solicitors, who instructed [ ].

1. The Appeal Panel (“the panel) convened, in private, to consider an appeal brought by the Appellant under the scheme of compensation for personal injuries criminally inflicted (“the scheme”).

2. The panel had before it an appeal hearing bundle numbering pages 1 through to 128. In addition the panel had the benefit of outline legal submissions on behalf of the Appellant authored by [ ]. These submissions outlined the practical reasons why the [ ] where the incident occurred, and the assailant himself had not been pursued for damages. They also outlined the legal position and an interpretation of the Scheme – which the Panel accepts – that a theoretical option to sue another party for damages does not preclude an application under the Scheme.

3. By Notice of Appeal dated the [ ], the Appellant appealed against the decision of a single member, who by decision dated the [ ] had refused to make an award under the scheme.

4. By way of the application form the Tribunal came to understand that the Appellant had been the subject of an assault on the [ ]. At that time he was playing soccer for his local team. Following a pitch invasion by supporters of the opposing team the Appellant was kicked in the head by one [ ]. This resulted in a serious injury being a fracture to the orbital floor and the medial wall. The Appellant was an inpatient for five days following the incident and the full extent of the serious consequences for him are set out in the report of [ ] received by the Tribunal on the [ ] following on from an examination carried out on [ ]. It is important to state that the details of the incident and the nature of the injury as outlined in the application form completed by the Appellant are supported and corroborated by the report of An Garda Siochana received the [ ] from [ ] Garda Inspector and the report of [ ], previously referred to. The Appellant is a [ ] by trade who was working in that capacity at the time of this incident. The Garda Report confirms that he was unable to drive for a number of months and lost his job as a result. The report of [ ] confirms that the Appellant has been left with residual double vision of the [ ] eye but no loss of vision. [ ] also notes that the Appellant was previously working as a [ ] but now works in a [ ].

5. The Tribunal have been provided with tax documentation of the Appellant for the years [ ] through to [ ] and from same have been able to deduce net income for the Appellant during the course of those years and the amount of social welfare received by the Appellant during the course of those years.

6. In addition limited vouchers have been presented arising from costs incurred by the Appellant in the obtaining of support from his General Practitioner and various medicines. The Tribunal accepted that the sum of the various vouchers comes to a figure of €310.17.

7. The Appellant gave evidence that by [ ] he had been a [ ] for in or about [ ] years having qualified as one not long after his Leaving Cert. He gave evidence that in or around the occurrence of the incident, [ ], whilst the country was experiencing difficult economic circumstances, he continued in employment. The nature of the [ ] work he was involved in was [ ].

8. The Appellant gave evidence of the occurrence of this incident. He indicated that in the course of a game, coming close to the final whistle, his team had successfully defended a corner and were attempting to get back to the opponent’s end of the pitch. He had, in the course of play, encountered his assailant, [ ] and tempers flared. This resulted in ordinary pushing and shoving, which would be part of the standard rough and tumble of any game [ ]. Matters took a negative turn when members of family, supporters of his team, entered the field of play from the sideline. Whilst there was a general melee, the Appellant was attacked by a person from the sideline who was swinging at him. In order to stop this the Appellant grappled this man to the ground. In attempting to get back up, having been asked to let this man go, [ ], otherwise uninvolved, came over and whilst the Appellant was still on all fours, kicked him in the head, damaging the left eye area as outlined previously.

9. It is relevant to note that in [ ] submissions it was explained that [ ] was not a man of means, and that [ ] had no relevant insurance against which a civil claim could have been made. It was explained that a pragmatic choice had been made not to explore these routes because they were unlikely to be successful.

10. Having outlined various medical procedures he underwent, the Appellant also indicated that at this juncture he continues to suffer from double vision. He now works in [ ] given the limitations presented by his disability he is not confident working with [ ], or working at heights which was an integral part of the job he previously did.

11. When asked about his potential to return to that area of work he confirmed he was not in a position to do so because of the problems he feels he would have in operating the likes of power tools. Citing various sources unnamed the Appellant indicated a view that if he was in the job that he previously was able to do he would now be in a position to earn double what he currently earns.

12. When the Appellant returned to the workplace in [ ] he first began working for a company called [ ]. That is a [ ] in [ ] where he worked in a capacity as a [ ] it would appear doing various maintenance work around the [ ]. Subsequent to that, since in or about [ ], he has been employed by [ ], a company who make [ ]. The job that he carries out there is one of [ ] when they come out of the [ ]. He has no difficulty with working in this capacity and he has worked successfully for [ ] since that time.

13. When questioned by the Tribunal as to the nature of any continuing loss of earnings [ ]. on behalf of the Appellant identified the nature of the claim that he was advancing as one of loss of opportunity. He urged the Tribunal that the fact that the net figures for income before the incident and current earnings by the Appellant being similar is something which we should not take into consideration and that the real comparison should be the figures for what is being earned in the [ ] now for [ ] involved in the type of work the Appellant carried on previously. [ ] indicated that, whilst not demeaning the job being carried out by the Appellant now, it was a step down from the skilled trade that he had carried on previously.

14. In the first instance it is important to acknowledge that the Tribunal accept that the Appellant was the victim of a crime of violence and suffered personal injury as a result. Whilst no prosecution of [ ] took place this was not for the want of trying on the part of [ ], who gave evidence that he had pursued it with the Guards. Despite that it seems to have fallen off their radar more than anything else. To that end, the Tribunal accept that on first principles the Appellant is entitled to access to the scheme and should be admitted as such. The Tribunal further accepts that no potential other route to recover damages, by way of suing the assailant, the [ ] or otherwise, was practically open to him, or in any event would have precluded his application under the Scheme.

15. The Tribunal also accept that from the occurrence of this incident on the [ ] the Appellant was unable to continue in the workplace until he was declared fit for work on the [ ]. Furthermore the Tribunal take the view that but for the occurrence of this incident the Appellant could well have continued in work and so, whilst he was declared fit for work in [ ] he only managed to secure employment once again in [ ]. The Tribunal accepts that this gap in employment is a consequence of the Appellant’s need to find work in a field other than that which he had trained in, and which he had spent the larger part of his professional life. Furthermore the Tribunal accepts that there was, in the initial period following his return to work, a drop in the amount of income he was receiving, which no doubt was a reflection of the change in employment and the necessary recuperation from the injury.

16. Having considered the tax documentation provided to the Tribunal, the Tribunal have identified that in the three years prior to the occurrence of this incident the Appellant had the following net income in each year: [ ] - €22,763; [ ] - €33,489; and [ ] - €27,400. This equates to an average net income over the course of this three year period of €27,884. The Tribunal have utilised this figure as a baseline figure for his pre-accident income.

17. Again by reference to the documentation provided, the Tribunal have identified the income received by the Plaintiff over the following years, along with the Social Welfare benefits that he has received over those years. The figures are tabulated below along with the net loss in each year.

18. The Tribunal are not willing to accept a loss of opportunity argument for continued losses after those identified in the table and schedule in the previous paragraph. The Tribunal make the observation that the average earnings for the Appellant over the final years of the economic boom were in the sum of €27,884. That is not a reflection of a figure following on from the downturn in the economy, but a reflection of an average figure over the very high payment period between [ ] and [ ]. In such circumstances the Tribunal are unwilling to accept the proposition submitted by Counsel that the figures for a person in the same role in [ ] would be as much as twice the amounts the Appellant earned in the years identified. The Tribunal are also conscious of the concepts enunciated by the Supreme Court in the seminal decision of Reddy -v- Bates and the vagaries of life that might have befallen the Appellant one way or the other. Furthermore the Tribunal make the observation that there is no independent evidence of the current pay achievable by a [ ] in the Appellant’s previous field, and as such insufficient evidence of this loss has been adduced.

19. Arising from the foregoing the Tribunal makes an award of €310.17 in respect of out of pocket medical expenses and an amount of €90,677.18 in respect of loss of earnings, giving an overall award of €90,987.35.

Signed:

Damian Sheridan B.L.

Chair, Criminal Injuries Compensation Tribunal

For and on behalf of the Appeal Panel

14 February 2024