Foilsiú
54248 (26 October 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.
Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of an Appeal Tribunal
Application number: 54248
Name of applicant: [ ]
Date of incident: [ ]
Date application received: [ ]
Hearing date: [ ]
In attendance: Marc B. Murphy BL (Tribunal Member, Chair), Mema Byrne BL (Tribunal Member), Peter Stafford BL (Tribunal Member), Anne Marie Treacy (Secretary to the Tribunal), [ ] (hereinafter ‘the Appellant’)
Decision: No award.
[ ] (‘the Appellant’) applied to the Tribunal for compensation under the Scheme for Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’) arising out of an incident which occurred on [ ], [ ] on [ ].
The Appellant states that he suffered both physical and psychological injury when he suffered an unprovoked assaulted by a named individual (‘the Assailant’) who punched him in the face, causing him to fall to the ground. Passers-by flagged down a Garda and the Appellant was taken to hospital in an unconscious state. The Appellant states that he suffered injuries to his face and head (including concussion) as well as suffering a broken ankle. The Appellant states that he was an in-patient at [ ] Hospital and subsequently required follow up treatment for his ankle. The Tribunal has not been provided with any medical evidence to confirm the Appellant’s injuries.
The Appellant’s assailant was prosecuted for an offence contrary to Section 3 of the Non-Fatal Offences Against the Person Act, 1997 (‘assault causing harm’). The Assailant pleaded guilty. The Learned Judge left the Assailant without a criminal conviction on the basis that he complied with several conditions including inter alia that the Assailant pay the Appellant a sum of [ ]. The Appellant has confirmed to the Tribunal that this sum was paid.
A single member of the Tribunal made a decision in the Appellant’s case at first instance by decision dated [ ]. The Appellant exercised his right under Article 25 of the Scheme to appeal that decision by way of hearing by three members of the Tribunal.
A panel of three members of the Tribunal was appointed to hear the appeal. It met remotely on [ ] to hear the Applicant’s appeal. The Applicant was in attendance via Zoom and represented himself. The Tribunal considered the case afresh (or de novo), taking into account the papers submitted by the Applicant, his oral evidence and submissions made by the Appellant in the course of the hearing. At the conclusion of the hearing the Tribunal agreed to facilitate the Appellant’s wish to furnish additional paperwork in support of his appeal. The Appellant furnished additional paperwork on [ ] and this has been duly considered.
Having considered the paperwork before it and evidence given and submissions made by the Appellant the Tribunal is satisfied, on the balance of probabilities, that the injuries arising were directly attributable to a crime of violence. Further, the Tribunal is satisfied that the initial application for compensation was made within the time period as set out in paragraph 22 of the Scheme.
The Appellant has two previous criminal convictions, one relating to a breach of a barring order in [ ] and the second for a breach of the peace contrary to Section 6 of the Public Order Act, 1994 (as amended) in [ ]. Paragraph 14 of the Scheme requires to Tribunal to consider whether:
‘…the conduct of the victim, his character of his way of life makes it inappropriate that he should be granted an award…’.
In the instant case the Tribunal is satisfied, on the balance of probabilities, that there is no causal or temporal link between these criminal convictions and the assault which the Appellant suffered. Furthermore, the Tribunal notes the investigating Garda’s view that the assault on the Appellant occurred in an unprovoked manner. Accordingly, the Tribunal will not apply paragraph 14 of the Scheme.
The Scheme provides that the Tribunal may make awards for out-of-pocket expenses only and it is not within the remit of the Tribunal to award compensation payments for pain and suffering. The Tribunal is entirely responsible for deciding, in any particular case, whether compensation is payable under the Scheme.
At hearing on [ ] the Appellant gave evidence of being assaulted and suffering a ‘bang to the head’. The Appellant gave further evidence of suffering a broken ankle which was treated at [ ] Hospital. It seems that the Appellant underwent two operations on his ankle and that the wound became infected after the first of these operations. The Appellant informed the Tribunal that he had a scar on his ankle as a resulting from his surgery. Whilst the Tribunal found, on the balance of probabilities, that the physical injuries described were caused by the assault complained of the Appellant did not furnish any medical notes from [ ] Hospital, nor any medical report detailing the extent of his injuries, sequalae or prognosis.
The Appellant gave evidence of having worked as a [ ] at a small, [ ] company for a period of approximately [ ] years. The Appellant stated that as a result of his injuries he had to attend out-patient appointments at the hospital or appointments with his physiotherapist ‘on about forty occasions’. This apparently caused friction with his employer due to absences from work. The Appellant stated that the mental and physical injuries suffered from the assault had a ‘severe impact’ on his life. The Appellant stated that he felt he was under pressure from his employer around this time and the employer/employee relationship deteriorated considerably. The Appellant mentioned that there was an allegation made by his employer that the Appellant had assaulted him in the workplace. The Appellant ceased employment with his employer in or around [ ]. The Appellant seemed to link the termination of his employment with adverse sequalae arising from his assault. It is worth repeating that the Appellant did not furnish any corroborative medical evidence or medical report to the Tribunal in respect of either his mental or physical injuries.
Following questioning from the Tribunal it transpired that the Appellant had taken legal advice and reached agreement with his employer on a severance package following a complaint being made by him to the Workplace Relations Commission. The Appellant opted not to disclose details of his severance package to the Tribunal, something it is accepted he was not obliged to do.
The oral appeal hearing concluded at this point, with the Tribunal agreeing to the Appellant’s request to provide further documentation in support of his claim.
The Appellant subsequently furnished some additional paperwork to the Tribunal. This paperwork consisted principally of outpatient appointment letters for the [ ] Clinic and [ ] Hospital [ ]. The Appellant also furnished a letter from his General Practitioner stating that the Appellant was unfit for jury duty because of his ankle injury. No medical report or psychiatric report was furnished and, accordingly, the Tribunal has no evidence before it of any recognised psychiatric injury/condition arising from the assault. Further, the Tribunal has not received any evidence upon which it could conclude, on the balance of probabilities, that there was any causal link between the Appellant’s ankle injury (and/or any other injury received) and the cessation of his employment.
The Appellant has provided vouchers in respect of pharmacy expenses in the sum of €241.93; hospital charges of €200 and a GP invoice for €60. The total, vouched, out of pocket expenses therefore amount to €501.93.
The Tribunal accepts that the Appellant attended several outpatient appointments for his ankle injury. The Tribunal is prepared to allow the recovery of travel expenses of €40 (€20 each way) In respect of each of these appointments. In the absence of any sufficient vouched evidence of these trips the Tribunal will cap travel expenses at €400.
The Appellant’s total out of pocket expenses therefore are €901.93.
Paragraph 16 of the Scheme states:
‘The Tribunal will deduct from the amount of an award under this Scheme any sums paid to or for the benefit of the victim or his dependants by way of compensation or damages from the offender or any person on the offender’s behalf following the injury.’
The Tribunal therefore must deduct the compensation payment of [ ] which was paid to the Appellant following his conviction and sentencing for this assault.
In circumstances where the Appellant’s compensation payment of [ ] exceeds the total amount of the Appellant’s out-of-pocket expenses the Tribunal makes no award.
Marc B. Murphy BL
26 October 2022