Foilsiú
50791 (13 May 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.
Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of one member of the Tribunal pursuant to Section 25 of the Scheme
Applicant: [ ]
Date of injury: [ ]
Date application received by the Tribunal: [ ]
Case reference: 50791
Determination: Applying Paragraphs 21 and 11 of the Scheme at the time of the applicant’s application to the Tribunal, no award of compensation is made.
1. By way of application form, marked as received by the Tribunal on [ ], the applicant claims compensation from the Tribunal for expenses arising from injuries sustained in a crime of violence perpetrated against him by a member of staff of the [ ] Shop on [ ] on the morning of [ ].
2. The Tribunal has the benefit of a narrative of the assault prepared by the applicant in his application form as well as a handwritten statement given by him to [ ] at an unknown Garda Station, (possibly [ ] Garda Station) on [ ], and a complaint made by the applicant to GSOC on [ ].
3. Together these accounts state that the applicant had arrived in [ ] from [ ], and after a day in [ ] while he waited for [ ] to be open, he went into the [ ] shop on [ ] where he got into a verbal altercation with a member of the security staff, and he was assaulted by him. The applicant stated that he was injured to his eye and head. Gardai were called to the scene, and the applicant was arrested and taken to [ ] Garda Station where he was charged with failing to peacefully leave a public place.
4. In support of his application, the applicant provided a copy of his statement to Gardai and a complaint he made to GSOC about the behaviour of the arresting officer.
5. The applicant stated that he was not working at the time of the assault, and did not submit any claim for any out-of-pocket expenses arising from the injuries sustained, or vouched documentation to support this claim.
6. On [ ], the secretariat of the Tribunal wrote to the applicant seeking further details of the Garda Station where the assault was reported, and drawing his attention to the three-month time limit for applications, pursuant to Article 21 of the Scheme.
7. On [ ], the applicant wrote to the Tribunal enclosing medical records from [ ], [ ] Hospital, and the [ ] Hospital relating to the treatment he received immediately after the assault and once he had returned to [ ].
8. On [ ], the secretariat of the Tribunal wrote to the applicant asking whether the applicant wished to pursue his application, and if he did so, to forward all vouched expenses. The secretariat of the Tribunal informed the applicant that in the absence of any response from the applicant enclosing such documentary evidence of expenses incurred by [ ] his file would be sent to a member of the Tribunal for decision.
9. No response was received to this letter.
10. The following documents were furnished to the Tribunal Member for decision:
a. Completed application form, marked as received by the Tribunal on [ ];
b. Copy of written statement by applicant to Gardai dated [ ];
c. Copy of complaint to GSOC dated [ ];
d. Medical records from [ ] and [ ] (various dates);
e. Correspondence between the secretariat of the Tribunal and applicant.
11. Based on the above, issues arises with respect to this claim for compensation from the Tribunal regarding (a) the requirement pursuant to Paragraph 21 of the Scheme to submit the application no later than three months after the event giving rise to the injury, and (b) the requirement, pursuant to Paragraph 11 of the Scheme to provide all reasonable assistance to the Tribunal. Each will be dealt with in turn.
12. Paragraph 21 of the scheme which was in place at the time of the application states:
"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. In the case of an injury arising out of an event which took place before the commencement of the Scheme, the application must be made not later than three months from the date of the commencement (subject, also, to the foregoing exception)".
13. In the facts of this case, the date the assault which gave rise to the injuries sustained was the [ ]. However, the application for compensation was received by the Tribunal on [ ]. This is considerably outside the three-month time limit for the making of an application for compensation from the Tribunal.
14. It is clear from the applicant’s application form, as well as his statement to Gardai and complaint to GSOC that the applicant was in a position to manage the details of the events which had occurred to him.
15. None of the information provided to the Tribunal gives any indication why the applicant would be unable to make an application, or engage a legal representative to do so on his behalf, within the requisite time scale. There is no information within this application to support an assertion that exceptional treatment should be afforded to the applicant in this case.
16. Therefore, the applicant’s case must be excluded based on the delay in making an application to the Tribunal without any exceptional circumstances justifying an exemption to the rule.
17. Paragraph 11 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.”
18. In determining whether a lack of reasonable assistance has been given such that compensation is not payable, consideration must be given to the scope and purpose of Paragraph 11. It effectively cuts applicants off from compensation and is thus a far-reaching provision. Its purpose is to serve as a sanction against those who do not co-operate with the Tribunal – its secondary purpose is to encourage applicants to give the Tribunal reasonable assistance.
19. The Tribunal should not rely on paragraph 11 to deny an applicant the potential for compensation in an irrational or arbitrary way. It seems logical to take into account two main factors: (i) the nature of the information or assistance sought by the Tribunal (and in particular whether its absence prevents a proper decision being made) and (ii) the frequency of requests and time elapsed wherein no adequate response has been received by the Tribunal.
20. It is observed that without evidence of the expenses incurred, including documentation relating to loss of earnings as a result of being unable to work, there is no information upon which the Tribunal can base an assessment of compensation, having regard to the value of any social welfare benefits received by the applicant.
21. The documents in question are integral to the formation of any determination.
22. The secretariat of the Tribunal wrote to the applicant on two occasions inviting the applicant to provide information relating to his medical treatment costs and other out of pocket expenses, and asking the applicant to submit any vouching documentation to support the application for compensation.
23. No response was received to either of these requests.
24. The Tribunal finds that because of the integral nature of the documentation sought to the decision-making process, and the elapse of time with no communication from the applicant (despite request), that there has been a failure to give reasonable assistance to the Tribunal.
Peter Stafford BL
13 May 2022