51762 (11 May 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: 51762

Date of incident: [ ]

Date of application: [ ]

Decision outcome: No award in light of insufficient evidence/information (application of Para 10 of 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 her application for compensation under the Scheme, received by the Tribunal on [ ], the applicant stated that she suffered post-traumatic stress related psychiatric injuries as a result of an incident at her place of work on [ ]. It transpired from the garda report that the applicant had witnessed a [ ] being murdered by gunshot in close proximity to her in the [ ] in which she worked.

3. Timelines apply to the Scheme, but they may be waived in exceptional circumstances. Paragraph 20 (general scheme, 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 order to assess whether a late application is admissible therefore, the Tribunal must determine 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].

5. While the application in this case was made late, the applicant’s claim if for psychiatric injuries arising from the incident. This is a circumstance in which the discretion should be exercised to allow exceptional treatment of considering an application outside the normal three-month timeframe. Otherwise an impact of the injury could operate to debar entry for consideration under the Scheme.

6. From the foregoing, I am satisfied that the applicant has established, on the balance of probabilities, that she was a proximate witness of a crime of violence, which was traumatic and which caused her to suffer post-traumatic stress disorder. On a preliminary view this is an injury which was directly attributable to a crime of violence. Though an unusual application (as it is normally the person who was subject of an attack who is an applicant) this is a claim which falls within the wording of paragraph 1 of the Scheme.

7. The incident was reported to the Gardaí on the day of the incident thereby meeting the requirement of Para 22 of the Scheme that the matter be reported without delay.

8. However in this case it appears that a High Court claim for compensation was made to the applicant’s employers for the personal injury that she suffered. While compensation from another source is not a bar to a claim under paragraph 5 of the Scheme, any award made in that context is relevant because the Tribunal must ensure that there is no duplication of compensation in the awards it makes. By letter of [ ] from the Tribunal Secretariat stated that as High Court proceedings were ongoing, the application would proceed further on their conclusion when loss would be able to be established. No correspondence is on file for nearly a decade, when, on [ ] the Tribunal Secretariat wrote to the applicant’s solicitor asking whether the applicant sought to pursue her application, and if so to forward documents vouching the applicant’s losses. No reply to this letter is on file.

9. The applicant is also under an obligation to give the Tribunal all reasonable assistance. Paragraph 10 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.”

10. Thus Under Para 10 of the Scheme the applicant must give the Tribunal all reasonable assistance if she is to be eligible for compensation under the Scheme. The rationale of this rule appears to be that the Tribunal needs information upon which it can make its decision as to the appropriate amount of compensation to award. That information must come either directly or indirectly from the applicant.

11. In this case there are information deficits which make it impossible to come to a determination. These include whether any medical expenses beyond that covered by a medical card are claimed for; an explanation of the excess of social welfare making up the loss of earnings, and whether an award of compensation was made in the High Court. Without this information the Tribunal is unable to come to a decision because it has not had reasonable assistance from or on behalf of the applicant to do so. Accordingly, no award of compensation can be made in this case.

12. The Tribunal hopes that the reason for non-engagement was that the applicant secured compensation elsewhere. In any event, it wishes to acknowledge the traumatic nature of the event she endured, and the hope that the applicant has been able to recover and move on from the episode which clearly affected her so deeply.

Tricia Sheehy Skeffington

Member, Criminal Injuries Compensation Tribunal

11 May 2023