Foilsiú
54658 (26 August 2022)
Ó Criminal Injuries Compensation Scheme
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Criminal Injuries Compensation Scheme
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
The Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted
First Instance Decision
Name of applicant: [ ]
Application number: 54658
Date of incident: [ ]
Date of application: Received by the Tribunal on [ ]
Decision outcome: Award in the sum of €3,360
1. Mr [ ] (“the applicant”) made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’) on behalf of himself.
2. In his application for compensation under the Scheme, dated [ ], the applicant referred to the Garda pulse number, and stated that he had reported his injury, attended his doctor and dentist, and was still very nervous and anxious. The application stated that he had no loss of earnings, but that his laptop computer had been stolen and that he was seeking general damages and legal costs. He submitted a letter form eth Gardaí as well as documents from his doctor and dentist.
3. A letter from Garda [ ] dated [ ] stated that the Applicant reported that he was robbed on [ ] on [ ] by two males who then assaulted him. He suffered injuries to his lips and teeth. Two suspects were identified, arrested and detained. Neither made admissions. Both men were released pending a file being prepared for the DPP seeking directions.
4. An outline of the events was recounted in the report of Dr. [ ] dated [ ]. It related that on [ ], the Applicant had attended his doctor and stated that two men had sat beside the Applicant on the [ ], had threatened to take his laptop and grabbed his bag. When the Applicant struggled with the man taking his bag, the other man kicked him three times in the mouth and once on the left hand. He did not lose consciousness. He reported the incident to Gardaí but did not go to hospital. On examination, he had a healing laceration of the left lower lip and chin, a fractured right upper incisor and a swelling over two of his metacarpals. He was asymptomatic on review on [ ] with a slight swelling on his left hand and the upper incisor fracture was still evident.
5. It is clear from the papers on the file that the Applicant was assaulted and robbed. An x-ray report dated [ ] from Dr. [ ] stated that there was no fracture due to the assault, but that the Applicant had been very anxious since the event, which was exacerbated by the COVID-19 pandemic.
6. A cover letter from the solicitors for the Applicant when submitting the form stated that instructions were taken in [ ] but due to inadvertence on their behalf they did not submit the form until [ ].
7. A detailed report by Prof. [ ] dated [ ] detailed the attack and the effect that it had on the Applicant. The theft of his laptop was particularly difficult as he lost revenue details and personal family details from [ ]. It concluded that the Applicant suffered a recognised psychiatric illness because of the assault, being an Adjustment Disorder in response to the stressful and traumatic event. His symptoms of tension, anxiety, fear and vigilance were related to this and he had shown impaired function.
8. The Tribunal is satisfied that the assault caused a psychiatric injury to the Applicant such that, while the application was not made within three months as required under Art. 20 (previously Art. 21 at the time of the Application), there were circumstances that justify exceptional treatment and the application is admitted for consideration.
9. A report from Dr. [ ] indicated that because of the assault, the Applicant was required to have dental root canal treatment which was carried out in two stages in [ ]. As he was a medical card holder, that treatment was covered by the State no payment was required by him. However, further dental treatment was required according to Dr. [ ] to complete a crown in the affected area and this would not be covered. That was estimated at €1,000 by Dr. [ ]. The Tribunal awards this amount.
10. No loss of earnings was claimed.
11. General damages and legal costs were sought repeatedly in correspondence to the Tribunal. Under the terms of the Scheme, and in particular Art. 26 (previously Art. 27) The Tribunal will not pay the costs of legal representation. Under Art. 6 (previously Art. 6(e)) compensation will not be payable in respect of pain and suffering in relation to injuries sustained after, at the latest, 1 January 2006. Therefore, the Tribunal does not award general damages in this case for pain and suffering. Correspondence on file from the solicitors for the Applicant states that these provisions of the Scheme are incompatible with Ireland’s legal obligations under European Law and in particular Council Directive 2004/80/EC and cited in support Case C-129/19 of the CJEU in general terms as upholding this proposition. It cited para. 29 of that judgment in relation to the time limit which does not appear to be relevant. That case concerned the implementation of the Directive in Italy and the application of a fixed rate of compensation to victims of sexual crime, and does not appear to be directly relevant to the case at hand. No further detailed submissions were made. It is not clear on reading this judgment that there is an obligation on the Tribunal to over-ride the express wording of this Scheme and award general damages in this case.
12. The Tribunal accepts the Applicant was robbed of [ ] which his solicitors estimated at €400 replacement cost by letter dated [ ]. However, para. 1 of the Scheme provides that it “may pay compensation in accordance with this Scheme in respect of personal injury where the injury is directly attributable to a crime of violence.” I do not consider that this replacement cost is an amount in respect of personal injury. Therefore the Tribunal does not award this amount.
13. Report fee for Dr. [ ]: €450
Report fee for Prof. [ ]: €1,660
Report fee for Dr. [ ]: €250
Total for reports obtained: €2,360
14. The Tribunal makes an overall award in the sum of €3,360 being €2,360 in relation to the reports obtained, together with an award of €1,000 for the Applicant.
Roderick Maguire
Criminal Injuries Compensation Tribunal
26 August 2022