F51061 (27 January 2024)

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: [ ] on behalf of the dependants of the late [ ]

Application number: F51061

Date of incidents: [ ]

Date of application: [ ]

Decision outcome: €28,312.76

1. [ ] (“the applicant”) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (“the Scheme”) on behalf of the dependants of his son, the late [ ].

2. On the [ ], died from his injuries and was pronounced dead in [ ], Hospital.

3. [ ], offenders were charged with manslaughter [ ] and sentenced to [ ] years in prison.

Late application

4. The application was received almost 19 months after the date of the incident. Paragraph 21 of the (pre-April 2021) Scheme states that “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”.

5. The applicant is an [ ] and resides in [ ]. The applicant also has provided a translated note from his Doctor in [ ] which confirmed that the applicant suffered psychologically with anxiety and sleep disorders as a consequence of the death of his son.

6. The Tribunal has carefully considered the application and the reasons put forward and finds that the applicant was in no fit mental condition to progress the application any sooner than he did. The manner of his son’s murder can only be described as being shocking and barbaric in nature and obviously extremely traumatising and distressing to the applicant. [ ], The existence of the Scheme would not be readily known to the applicant due to him residing in [ ]. For the forgoing reasons, the Tribunal finds that the circumstance of this late application merits exceptional treatment and will admit this application to the Scheme.

7. Paragraph 6 of the (pre-2021 Scheme) states that “Subject to the limitations and restrictions contained elsewhere in this Scheme, the compensation to be awarded by the Tribunal will be on the basis of damages awarded under the Civil Liabilities Acts”. Therefore, where a claim is made under the Fatal Injury Scheme, the Tribunal must have regard to Section 49 of the Civil Liability Act 1961. While it would be impossible to compensate the family of [ ] for such a tragic loss, Section 49 of the Civil Liability Act 1961 provides for a modest maximum payment of €25,394.76 (which was the applicable sum payable previous to [ ]) to the surviving dependants in respect of compensation for mental distress resulting from [ ] wrongful death (“solatium”). The solatium is intended to be an acknowledgement of grief rather than an attempt to compensation for it.

8. S 47 of the Civil Liability Act, 1961 defines a “dependent” as including the “wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister” of the deceased. A previous spouse, even after a decree of divorce of granted, is also defined as being a “dependent”.

9. [ ] is survived by four statutory dependants: the applicant (his Father) and [ ].

10. Despite attempts by the [ ] Embassy and the applicant’s [ ] Lawyers, the remainder of the dependents have not been in contact, not located or have not interacted with the Scheme. They have also not waived their potential entitlement to a share of the solatium.

Funeral expenses

11. [ ] funeral expenses are vouched in the sum of [ ] (€543), [ ] (€895) for funeral refreshments, [ ] (€1,380) in respect of the purchase and erection of a headstone. XE currency converter has been used to calculate [ ] to Euro.

12. Notary fees are [ ] (€15), translation fees [ ] (€60), doctor’s fees of [ ] (€25).

13. The items in paragraph 11 and 12 amount to €2,918.

14. The applicant also incurred legal fees in the sum of [ ]. Legal fees are not recoverable under the terms and conditions of the Scheme.

15. The applicant claims that he resided in [ ].

16. The applicant also maintains that he is disabled and unable to work. His son supported him financially every month and sent him €670.

17. [ ] worked for [ ] since [ ]. His P60 for [ ] reveals that he earned a gross salary of €27,873.68, which equates to approximately €500 net per week.

18. While the Tribunal has no reason to disbelieve the applicant’s assertion that he relied on his son for financial support, unfortunately, the applicant has not provided any documentary proof to the Tribunal to vouch his claim that he received financial support from his son. No bank statements, financial receipts or documentary evidence of any kind were provided to prove the payments or vouch the financial support received from his son. The applicant has failed on the balance of probabilities to vouch the forgoing claim for a loss of financial support. In the circumstances and very regretfully, the Tribunal cannot make any award to the applicant in respect of these losses.

19. No award will be made to the applicant’s [ ], The division of the remainder of the solatium is far from straightforward in this matter. It is quite evident that the applicant and his son enjoyed a close and loving relationship and that the applicant continues to suffer and will perpetually miss his son. His son, clearly was a hardworking man and a great son to his father. He was the entirely innocent victim of the barbaric acts of the offenders. He was simply in the wrong place at the wrong time and the outright unfairness of the situation must be the most bitter of pills for the applicant to have to swallow.

20. The location of [ ] is unknown. However, it is unknown if the [ ] had a relationship with [ ], or whether they were estranged at the date of his death.

21. Equally, it is unknown if [ ] had a relationship with [ ], at the date of his death. [ ], has not responded to attempts to contact her, but this could be for a variety of reasons (grief, suspicion of authorities, lack of understanding of the correspondence or quite simply she does not reside at the address) and cannot be assumed that she had no relationship with [ ], nor can it be assumed that she did not suffer mental distress as a consequence of the death of [ ]. It equally cannot be assumed that her lack of co-operation should be taken as some form of an implied waiver.

22. [ ] might have desired that [ ], should share in the solatium and it is very rare that such close relatives would not be awarded a portion of the solatium. However, there is also the possibility that any awards made to [ ] might never be found and any awards might never be received by them, and thereby this would cause an injustice as the applicant would be deprived from the benefit of these funds.

23. On balance, and considering all of the factors and having regard to the close relationship of the applicant and his son, justice dictates that the entire solatium should be awarded to the applicant. It is a matter for the applicant to use the funds entirely for his own benefit or distribute the funds in the manner that he knows would be consistent with the wishes of his son.

24. The Tribunal makes a total award of €28,312.76 (€2,918 out of pocket expenses + €25,394.76 solatium) to the applicant.

David Culleton

Criminal Injuries Compensation Tribunal

27 January 2024