Foilsiú
54015 (29 September 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
Decision of a Single Member
Name of applicant: [ ]
Application number: #54015
Date of incident: [ ]
Date of receipt of application: [ ]
Decision: Award of €57,700.
1. [ ] (“the Applicant”) has applied for compensation to the Criminal Injuries compensation Tribunal (“the Tribunal”) under the Scheme for compensation for criminally injured (“the Scheme”).
2. The Applicant’s claim is that he suffered personal injuries as a result of an unprovoked assault upon him [ ]. The Applicant’s claim is that when [ ] he was punched in the head [ ] as a result of which he suffered a traumatic brain injury, for which he had to undergo emergency surgery.
3. According to a Garda Report, received by the Tribunal on the [ ], the Gardaí found the Applicant lying on the ground in an unconscious state following the attack. The Gardaí confirmed that there were a number of witnesses to the attack, but that the Applicant’s assailant had fled the scene.
4. The Gardaí confirmed in their said Report that the Applicant’s assailant was prosecuted [ ]. Following a guilty plea, the perpetrator was sentenced at [ ] Court to a [ ] year custodial sentence, the final on [ ].
5. The Applicant’s [ ] submitted a claim to the Tribunal on the Applicant’s behalf, on the [ ].
6. The Tribunal accepts that the Applicant suffered personal injuries which were directly attributable to a crime of violence and that the said incident was the subject of criminal proceedings (satisfying paragraph’s 1 and 22 of the Scheme respectively). The Tribunal also accepts that this claim was made on the Applicant’s behalf and received by the Tribunal within the time period permitted, in normal course, pursuant to paragraph 20 (formerly paragraph 21) of the Scheme. From the foregoing, the Tribunal accepts that this application is amenable to consideration for compensation.
7. The Applicant’s claim is that the personal injuries he suffered as a result of this assault have changed his life. The Applicant claims that before this incident occurred: he had left school early and had engaged with Youth Reach and FAS, and that while he was in receipt of unemployment benefit he had got a vocational training through FAS; that in [ ] he had moved out of home to live independently and that he has lived independently ever since; that he worked in a fulltime position as [ ] from [ ] through to [ ] [ ]; that from [ ] to [ ] he had worked full time in a [ ] where he had become [ ], but had left because it was a temporary position and opportunities for promotion were limited; and, that having moved to [ ], in [ ] at the age of [ ], he had obtained a fulltime [ ] job at [ ] was fit, [ ], was living in a flat and was hoping to go college, when he was assaulted on the [ ].
8. As a result of this assault, claims the Applicant, he suffers from inter alia: cognitive deficits; his right arm and leg “do not work properly”; he has bowel and bladder incontinence; he has [ ]; he suffers from anxiety, frustration and fatigue; and, “is dangerously depressed”. The Applicant also claims that he has motivational issues and is unfit, that he has to take taxis or use a wheelchair when he gets tired and that he suffers from disturbed sleep patterns and body image issues. The Applicant submits that [ ] and that having lost weight after the assault, his weight has since increased to [ ] kilos due to his sedentary lifestyle.
9. In or around December [ ] the Applicant engaged legal advisors to deal with the Tribunal in respect of his application. By mid-[ ], upon request, the Tribunal released the Applicant’s file to his legal advisors. The Tribunal, having had no communication from the Applicant’s legal advisors in the intervening years, wrote on the [ ], seeking an update on the status of the criminal proceedings in relation to the assault upon the Applicant in order to progress decision making on this application. The Applicant’s legal advisors responded to the said communication some months after that and subsequently furnished the Tribunal with the documentation it intended to rely upon in advancing the Applicant’s claim. These extended to:
a) Out of Pocket/medical expenses for the Applicant, past and future;
b) The Applicant’s loss of earnings, past and future;
c) The Applicant’s [ ], loss of earnings, past and future;
d) Retrospective care costs for the Applicant given by [ ] to [ ] in the family home, which is owned by the Local Authority;
e) Prospective care costs for the Applicant.
10. The Applicant’s legal advisors also furnished the Tribunal with a Schedule of Losses for the Applicant. The amount being claimed is in excess of €14,000,000.
11. The following documents/reports have been furnished to the Tribunal in support of the Applicant’s claim:
a) Two Medical Reports dated [ ] and [ ] from Consultant Neurosurgeon at [ ] Hospital, [ ];
b) Two Medical-Legal Reports from Mr [ ], commissioned by the Applicant’s legal advisors, dated [ ] and [ ];
c) A Neuropsychologist’s report from [ ], Neuropsychologist, commissioned by the Applicant’s legal advisors, who reviewed the Applicant in person on [ ];
d) A Vocational Assessment from Occupational Therapist [ ], commissioned by the Applicant’s legal advisors, who assessed the Applicant in person on the [ ];
e) A Care Needs Assessment Report from Nurse [ ] of [ ], commissioned by the Applicant’s legal advisors, who reviewed the Applicant remotely on the [ ];
f) Two Actuarial Reports from [ ] commissioned by the Applicant’s legal advisors: one in respect of the Applicant’s claim, and one in respect of the Applicant’s [ ] claim, dated [ ] and [ ] respectively.
12. Following the incident, the Applicant was brought to [ ] Hospital by ambulance but was transferred onto [ ] Hospital, where he underwent surgery for a decompressive left sided craniectomy for an acute subdural hematoma and left temporal hematoma. The Applicant also underwent a tracheostomy. While recovering in ICU the Applicant suffered a chest infection and a subclinical seizure, for which he was put on antiepileptic medication. The Applicant remained in intensive care for some time but was later transferred to a ward where he commenced rehabilitation, including physiotherapy, prior to his discharge on [ ] back to [ ] Hospital.
13. The Applicant remained an in-patient at [ ] Hospital until the [ ], at which point he was discharged home. The Applicant’s [ ] who was employed as [ ] at the time of the attack, ceased employment on the [ ] to look after the Applicant.
14. Consultant Neurosurgeon Mr [ ] reviewed the Applicant on the [ ], some five months after the assault. In his Medical Report of the same date Mr [ ] noted that the Applicant had returned to [ ] in [ ] for a CT scan of his brain, and that this “did not show any hydrocephalus nor had he had any seizures.” Following his review of the Applicant on [ ], Mr [ ] reported “Currently his cognitive functions are improving. His speech is much improved as is his general mood. He is walking normally.”
15. On the [ ] the Applicant returned to [ ] for elective surgery, for a cranioplasty. In a second Medical Report from Neurosurgeon Mr [ ], dated the [ ], he reported that the Applicant’s cranioplasty surgery procedure was uneventful, without any complication, and that the Applicant was discharged home on the [ ]. In Mr [ ] opinion, the Applicant was neurologically improving but his cognitive functions were still not 100%. “I am hoping that he will make a good recovery” opined Mr [ ], and advised that a report from a neuropsychologist would be needed. Mr [ ] repeated his findings of his assessment of the Applicant on [ ] “…I was delighted the way he was making good progress. He was walking normally, his speech was much improved and his cognitive functions were improving and he still had a right arm mild weakness but the legs was [sic] completely normal.”
16. From the application papers it appears that in or around [ ], the Applicant was admitted as an in-patient into [ ] Support Accommodation. It appears that the Applicant left this accommodation and thereafter was admitted onto the [ ] Hospital, [ ] three-month rehabilitation programme, returning home for weekends. Reference is also found in the application papers to the Applicant having been linked into [ ] with [ ] in [ ], which he attended for a year over the course of [ ] and [ ]. It appears too that the Applicant received materials to aid his recovery from the HSE.
17. It is noted that, with the exception of Mr [ ] Medical Reports as referenced above (at paragraphs 15 & 16), dated [ ] and [ ], and two further Medical-Legal reports from Mr [ ], commissioned by the Applicant’s legal advisors in [ ], the Tribunal has not been furnished with a single assessment, GP note or record, hospital record, medical report, discharge letter to the Applicant’s GP, or update from all or any of the various health service and rehabilitation service providers that the Applicant attended both as an inpatient and/or outpatient, from the time he commenced rehabilitation before he left [ ] Hospital on the [ ], through his stay in [ ] Hospital, then [ ], and through [ ] and [ ].
18. By [ ] the Applicant was in a position to take an entrance exam for admission to the University of [ ] ) for a [ ] three-year degree course. The Applicant was successful in obtaining a place [ ], and elected to take [ ] as his subjects. The Applicant commenced his studies at the University of [ ], remotely [ ] in [ ], whilst he remained living in the family home. From the application papers it appears that the Applicant engaged well with university life, was [ ] and took part in charity events during the academic year. Furthermore, it appears that the Applicant was linked into the University’s Disability Support Services to which he was entitled to avail of, and did avail of: in terms of rehabilitation, occupational therapy, and counselling. No details/reports/notes/assessment outcomes and/or updates from these service providers have been furnished to the Tribunal as part of this application.
19. Two Medical-Legal Reports were commissioned by the Applicant’s legal advisors from Mr [ ]:
Mr [ ] Medical-Legal Report No. 1 – [ ]: Mr [ ] reviewed the Applicant at his outpatient clinic on the [ ], some two years and two months after the assault. Mr [ ] reported that the Applicant complained of the following: “a lot of fatigue and lack of energy”; that he “still feels weakness of his right arm and in the right leg but has no headache”; that he was still getting some minor absent seizures and was on Epilim. Mr [ ] reported that the “Applicant was still having ongoing psychological issues with lack of concentration and fatigue and lack of energy and mood changes. He has mild weakness of the right arm and right leg but overall, he has made a good recovery following a severe traumatic injury. He would need a neuro-psychological report to assist his mental status and mental capability but from neurological site I am happy that he had made a good recovery.” The Tribunal notes that for the first time, at this juncture, the issue of weakness in the Applicant’s leg was raised by the Applicant. However, there does not appear to have been any further investigation of this complaint, unless it is contained in documentation which has not been furnished to the Tribunal.
Mr [ ]’s Medical-Legal Report No. 2 – [ ]: Mr [ ] noted “Currently his main issues are psychological issues, fatigue, tiredness, and lack of concentration. His sleep pattern is also being disturbed. He told me that he tried on two occasions to get a job but due to his tiredness and fatigue he could not continue the job and according to him, he is attending a rehab college to build his energy level. Mr [ ] noted that the Applicant had informed him that “he was a healthy person prior to the assault and had no issues prior to the assault”. In Mr [ ]’s opinion the Applicant had made a good physical recovery over a period but the Applicant was still having on going psychological issues and Mr [ ] was of the opinion that he would have those issues in the long term, but could not say what the severity of those psychological issues were. It is unclear from the file to the Tribunal if Mr [ ] met with the Applicant for the purposes of this review and Report.
20. The Applicant’s legal advisors also commissioned a Neuropsychologist’s Report from Ms [ ]. Ms [ ] assessed the Applicant in person on the [ ].
21. The Tribunal notes that the only background information provided to Ms [ ] were the two Medical-Legal reports from Mr [ ] of [ ] and [ ], commissioned by the Applicant’s legal advisors, Ms [ ] was not provided with any further documentation pertaining to the Applicant’s history including: Mr [ ]’s two Medical Reports from [ ]; the Applicant’s medical and rehabilitation notes/reports/records including GP and hospital [ ] stay reports or records; assessments and outcomes of same of the Applicant from any of the service providers with which the Applicant had been engaged since the end of [ ] through to [ ], nor any update on the Applicant’s engagement with the University of [ ] Disability Support Services.
22. Ms [ ] noted that given the Applicant’s disrupted school career it was difficult to predict his premorbid level of ability. The Applicant himself reported that he had had a disrupted adolescence, with poor school attendance, drug use (“mainly” cannabis) and failure to sit his state exams. The Applicant reported that he had tried to return to work but fatigue, right-sided weakness coupled with anger at his changed circumstances had prevented that to date.
23. Ms [ ] recorded the Applicant’s own concerns of inter alia “… strong feelings of loss – of his job, his financial independence, his interest in many aspects of life, and his capacity to apply his mind to study or other matters. He remains angry at his assailant, and fearful that they will meet again. He is frustrated at the slow and cumbersome legal process, and the likelihood that any redress will not help him regain a good quality of life. He often remains passively suicidal, but will wait until his case has settled before undertaking any major life changes.”
24. Ms [ ] noted that while the Applicant had “some rehabilitation”, he reported that he was currently not with any service. She recommended that the Applicant return to psychotherapy to address his issues of anger, loss and anxiety. She also opined that he would be helped by some memory retaining sessions with [ ] in [ ], a private rehabilitation therapist or input from an occupational therapist in [ ]. Ms [ ] recorded “Currently, his clinical picture is complicated by psychological stressors and his final prognosis is unclear in neurophysiological terms.”
25. Ms [ ] carried out various cognitive assessments of the Applicant following which she reported that “Neuropsychological testing, indicated a general lowering of cognitive scores, with particular problems in the areas of attention and new learning. While much of this is considered to be due to the residual effect of his head injury, it must be seen in the context of severe depression and frustration reading his changed circumstances, and his distraction due to environment frustrations and mental intrusions related to the triggers to the assault itself. In short were his mood to improve, it is likely that he would achieve to a higher standard on memory tests.”
26. In the context of assessing the Applicant’s claim for compensation pertaining to personal injuries directly attributable to the crime of violence, the subject matter of this application, in the absence of a psychiatrist’s report setting out a diagnosis of severe depression (a psychiatric condition) of the Applicant, and in the absence of all of the information to which Ms [ ] was not privy to prior to assessing the Applicant (as set out at paragraph 21 above), as well as the lack of documentation substantiating the claims made by the Applicant himself, coupled with the fact of the Applicant’s ability to get accepted onto a degree course and his subsequent attendance at university, including his participation in university life from [ ] through to [ ] as claimed, (and nothing in the papers indicates otherwise) during which time Ms [ ]’s assessment took place, the Tribunal places limited weight on the conclusions of this Report,
27. The Applicant’s legal advisors also commissioned [ ], Occupational Therapist, of [ ], to carry out an assessment of the Applicant for the purposes of providing a Vocational Assessment Report. Ms [ ] assessed the Applicant in person on the [ ]. Again, Ms [ ] was only provided with the two Medical-Legal Reports of Mr [ ] from [ ] and [ ] and Neuropsychologist Ms [ ]’s Report of the [ ], commissioned by the Applicant’s legal advisors. Ms [ ] did not have the benefit of any records/notes/reports/assessments pertaining to the Applicant in respect of his medical and rehabilitative history, as referenced at paragraph 21 above.
28. As regards the Applicant’s cognitive status, Ms [ ] noted that he presented as alert and orientated in time place and person, and that his communication was clear and articulate. Upon assessment Ms [ ] also found the Applicant’s functional mobility and functional movement satisfactory: he mobilised independently and had a normal gait, without the need for mobility aids. Ms [ ] was of the view that returning to education after a brain injury was an excellent way of acquiring skills necessary for work in a flexible, supportive environment. Returning to education in this case, opined Ms [ ], was part of the overall vocational rehabilitation plan and was an intervention grounded in the principles of “cognitive work hardening.” Ms [ ] recommended that the Applicant be provided with an ergonomic workstation to facilitate his desktop activities – a height adjustable desk, desktop computer and custom-made desk chair with postural support and a “steppie” balance board.
29. Ms [ ] also set out the Applicant’s own concerns (in essence as set out in paragraph 8 above). The Applicant informed Ms [ ] that he had unsuccessfully trialed on three occasions for work in [ ], twice as a [ ] and once in retail. No further details of these trials were provided to the Tribunal.
30. Ms [ ], in relying on the Applicant’s own account of his issues, and on Ms [ ]’s Report, as well as her own assessments of the Applicant, was of the view that the Applicant required further improvement in his physical, cognitive and psychological symptoms before he returned to work, and that he would benefit from engaging with an occupational therapist, and a neuropsychologist specialising in vocational rehabilitation to monitor his rehabilitative progress during his studies, and that these should be sourced privately. She also recommended a strength and conditioning coach for the Applicant. Ms [ ] concluded that it was too early to predict if in 3-4 years after further rehabilitation the Applicant would experience an amelioration in his symptoms and/or enhance his capacity to return to work. Ms [ ] recorded that the Applicant was, at that stage, [ ], having “ongoing community Neurorehabilitation with [ ] Services in [ ]” though further details of this service/engagement were not furnished.
31. While the Tribunal accepts the assessment by Ms [ ] in good faith, in the absence of all of the information to which she was not privy (as set out at paragraph 21 above), and in the absence of documentation substantiating the claims made by the Applicant himself, together with the fact of the Applicant’s acceptance onto a degree course and his attendance at university, including his participation in university life as claimed (and nothing in the application papers indicates otherwise) from [ ] through to [ ], in the context of assessing the Applicant’s claim for compensation pertaining to personal injuries directly attributable to the crime of violence, the Tribunal places limited weight on this Report.
32. Pediatric Specialist Nurse, [ ] of [ ] and Associates of [ ] was commissioned by the Applicant’s legal advisors to prepare a Care Needs Assessment Report on the Applicant. Ms [ ] assessed the Applicant [ ] on [ ] (with follow up phone calls to the Applicant and [ ]). It appears that Ms [ ] was provided with Mr [ ]’s Reports (albeit all four Reports) and the Reports commissioned by the Applicant’s legal advisors from [ ] [ ] Occupational Therapist and [ ] [ ], Neuropsychologist. No further material (as set out in paragraph 21) was furnished to Ms [ ] to assist by way of background/context for her assessment of the Applicant.
33. The Applicant’s claims, which are captured in the main at paragraph 8 above, have been set out in this Report. Additionally, the Applicant informed Ms [ ] that he suffered from pain in his left temple and the back of his head and that he had full blown seizures during the night at least once a month and absence seizures (staring for a few seconds) regularly. The Applicant’s [ ] reported that [ ] had been diagnosed with PTSD but had declined admission to hospital and instead was medicated at home. The Applicant reported that he mourned the loss of his past life, suffered mood disruption, low mood and body image issues and that he struggled with self-care and his sleeping patterns, anxiety and irritability. The Applicant reported that he was “a dangerously depressed individual who cries on average twice a day in his room.”
34. Ms [ ] set out the Applicant’s claim, that in [ ] having obtained shared accommodation with [ ] in [ ] to continue his studies, he had moved into that accommodation but with reduced co-ordination of his right leg and slowness of movement, he struggled to complete the [ ] km walk from his current accommodation to college, which meant that he had to take a taxi as the walk could have a negative effect on his ability to participate in college work. The Applicant reported that managed himself on a daily basis, his cooking and his medication. The Applicant claimed that, soon after moving to [ ] (in [ ]), he suffered extreme anxiety and depression and was unable to concentrate on his studies, so he deferred his exams to [ ] and moved back to his family home. Ms [ ] recorded that it was anticipated (i.e., at the time of her assessment in [ ]) that the Applicant would return to [ ] in the near future.
35. Ms [ ] has classed the Applicant as a high dependency patient. She reports that the accommodation he currently has for college is not suitable for a wheelchair and that he will require a four bedroom and four-bathroom house all on one level in order to accommodate the Applicant and his family, with additional accommodation for care staff. This accommodation should come with a spacious garden, designed for the purposes of the Applicant’s therapy, recreation and stimulation (Ms [ ] has referenced a specialist architect in this respect). Transport, property DIY, maintenance, painting and gardening services, as well as child care costs for any prospective children up to the age of 12 years that the Applicant may have, have also been included in prospective care costs. A number of other services/supports were also factored into Ms [ ] Care Needs Assessment for the Applicant.
36. Ms [ ] reported her concern that the Applicant had “not had neurology input to date” and although she acknowledged such input was available through the public sector, in order to access it in a timely fashion, she recommended privately funded therapy. Ms [ ] was also of the view that physiotherapy, occupational therapy and psychology were all required by the Applicant, as well as psychological support for the Applicant’s [ ].
37. It is difficult for the Tribunal to reconcile the asserted needs of the Applicant as set out in this Nursing Care Assessment Report when considering the following: (i) the review by Neurosurgeon Mr [ ] in [ ] recorded the Applicant as having “mild” right arm weakness at that point but also completely normal gait and legs; (ii) the Applicant has had, it appears, extensive rehabilitation from [ ] onwards, and a myriad of rehabilitation opportunities open to him and availed of throughout [ ] and [ ]; (iii) the Applicant successfully sat college entrance exams in [ ] and then attended college and participated in college life for the academic year [ ]; (iv) as well as having been linked into neuropsychological services locally it appears from [ ], the Applicant has availed of and currently avails of Disability Support Services through college; (v) the absence of substantiating documentation of many of claims now being made; (vi) the absence of most medical records/notes/assessments/reports pertaining to the Applicant and his condition, (except for two initial medical reports from Mr [ ]) bar those commissioned by his legal advisors.
38. [ ], have provided calculations in a Report dated [ ] for losses arising for the Applicant, and in a Report dated [ ] for losses arising for [ ]. These have been calculated on information provided by the Applicant’s legal advisors. Estimated combined losses/costs are deemed to be in excess of €14,000,000. Additional costs/losses have been put forward by the Applicant’s legal advisors.
39. Upon receipt of this application on the [ ] the Tribunal Secretariat responded the following day, on the [ ], and stated in its correspondence that compensation for losses must be vouched by original documentation. Most recently, the Applicant’s legal advisors, in correspondence from the Tribunal Secretariat, dated [ ], were put on notice that the Tribunal required original receipts for any out-of-pocket expenses claimed arising from the personal injuries suffered as a result of the incident the subject matter of the application.
40. The following documentation has been received:
o Two receipts from Health Centre, [ ] in the sum of €20 and €50
o Two hand written receipts “contribution by [ ]” dated [ ] for week of [ ] and [ ] - in the sums of €25.80 and €34.40 respectively - it appears in relation to rehabilitation attendances by the Applicant
o An acknowledgement letter of receipt of €450 from Mr. [ ] for the first Medical Legal Report, dated [ ]
o An invoice from [ ] unpaid and dated [ ] in sum of €800
o Invoice unpaid for [ ] Hospital for €800 dated [ ]
o A receipt for a CT scan in sum of €180 albeit with a VHI policy No. [ ] quoted thereon
o Copy Bank statements ([ ]) Applicant’s [ ]
o Homecare Medical receipts (3)
o [ ] Hotel Leisure Centre Membership €400 for 6 months dated [ ]
o [ ] - accommodation invoice ([ ]) - €180
41. No receipts have been produced for [ ] and [ ] Hospitals. The Applicant has produced a receipt for a CT brain scan with VHI policy number referenced thereon: The Tribunal does not duplicate payments which a health insurer covers on behalf of any applicant. The Tribunal notes that a medical card was applied for and received by the Applicant, but has not been informed the date the Applicant’s medical card entitlements commenced. Copy bank statements with handwritten notes are not deemed vouching documentation.
42. From the foregoing, the Tribunal will allow the following: €2,000 as a contribution towards travel and B & B accommodation expenses by the Applicant’s [ ] in [ ] and [ ], when the Applicant was an in-patient at [ ] Hospital; €500 to cover various medical expenses including 2 GP attendances, medical care and rehabilitation costs which have been vouched; €400 for the [ ] Hotel leisure Centre membership for 6 months, paid on the [ ] by the Applicant, presumably in seeking to aid his rehabilitation; €450 for Mr [ ]’s first Medical-Legal Report on the basis that it is clear from the email correspondence that the Applicant was obliged to pay this sum himself. Total allowed: €3,250
43. From the file, it appears that the mainstay of the Applicant’s needs are psychological supports. He has a medical card, he is linked to psychological services in [ ] and has, and can avail of, Disability Support Services through University of [ ] as long as he remains registered as a student. Although the Tribunal has not been provided with any documentation to indicate the level of engagement by the Applicant with the various service providers, nothing on the Applicant’s file establishes that these supports were not, or are not, sufficient. Nonetheless, the Tribunal is prepared to allow for some private psychological services and fitness and conditioning supports into the near future, to address the Applicant’s present psychological needs, which in turn should assist improvement in his cognitive functioning and fatigue.
44. To that end the Tribunal is prepared to award the sum of €10,000 towards the cost of psychotherapy/psychological supports for the Applicant, to supplement the existing services available to him, and a further €5,000 for strength and condition sessions, on the premise that when the Applicant’s mood and anxiety have been addressed through psychological supports, this will assist his cognitive functioning, his ability with work and his concentration levels, and also assist in reducing his nicotine dependency, which should ameliorate his fatigue and address his weight gain: Psychotherapy/psychological services - €10,000 Physiotherapy/Strength and Conditioning Gym - €5,000
45. The Tribunal also accepts Ms [ ] [ ]’s view on the benefits of education in respect of rehabilitation of the Applicant and notes that Ms [ ] recommends that the Applicant be provided with a suitable ergonomic working station including desk, chair, desktop computer and a “steppie” to assist him during his studies. The Tribunal will allow €5,000 for same. Total allowed: €20,000
46. The Tribunal is a stranger to any call the Applicant has made in terms of housing or accommodation from the Local Authority, or how his shared accommodation in [ ] has been financed/allocated for his degree studies and/or what grants and/or supplemental grants he has been awarded/is entitled to apply for now, or into the future. No details have been furnished to the Tribunal in this regard.
47. The Applicant’s loss of earnings claim is based on the narrative rehearsed throughout this Application, that the Applicant was in full time employment from [ ] through to the time of the assault on the [ ] [ ] and this has been rehearsed throughout this Application. At the time of the assault the Applicant was [ ] years of age and was earning €9.30 per hour as [ ] (and was still on probation, according to his contract). From the Applicant’s [ ] end of year statement (P21) the Applicant did not appear to have worked for most of [ ] until he commenced work on the [ ] of that year. The Applicant’s end of year statements for [ ] and [ ] indicate that he earned the approximate total sum of €5,000 (net) for [ ], and the approximate total sum of €8,176.46 (net) for [ ].
48. The Tribunal has no information as to the Applicant’s means to live independently for the years [ ], [ ] and up to [ ], and, what, if any, Department of Social Protection payments were made to the Applicant during these years, to supplement his income to live independently, as he has claimed he has done since [ ]. The Tribunal has not been privy to more detailed information on the Applicant’s work history and/or any Department of Social Protection payments that may have been paid to him in the years prior to the assault, and in that regard, his GP records, prior to the incident. Had these details been furnished to the Tribunal, they might have assisted in understanding the Applicant’s work patterns as well as any historical issues that may have been of relevance in assessing the Applicant claim.
49. The Applicant was granted Illness Benefit from the date of the incident/assault. Additionally, he received Supplementary Welfare Allowance, Exceptional Needs Payments and was later granted Disability Allowance and Fuel Allowance. In total, from the records provided from the Department of Social Protection, the Applicant was in receipt of welfare payments totalling approximately €54,000 from [ ] through to the [ ]. Accordingly, the Tribunal finds no past loss of earnings claim has been established by the Applicant.
50. The Applicant was [ ] at the time of the assault. He had not completed secondary level education and in the [ ] years after leaving school he had not engaged in any further studies. The Applicant commenced third level studies in [ ] and has continued with these studies. The Applicant’s prospects into the future, of returning to work once he has completed his studies, even if it takes him longer than the prescribed three years for the Degree course he is studying, are broader than they have been in the past, and in the workplace economy that prevails, the Applicant will be in a strong position to improve on his employment record from his pre-incident days. Accordingly, no claim for future loss of earnings is established.
51. That is not to say that the Tribunal does not acknowledge that the Applicant has some need for supplementary supports during his time in university. These supports are in the domain of psychological support, fitness regimes, occupational therapy/physiotherapy, all of which may not be provided to the fullest extent through the public system or through the University’s Disability Support Services for the Applicant. As noted above at paragraphs 43-45 above, the Tribunal is willing to pay towards supplemental services in these domains for the Applicant.
It is clear that the Applicant’s [ ] ceased employment as [ ] in order [ ] upon his return from hospital following the attack and injuries sustained.
52. From the documentation provided, [ ] earned in or around €17,444 (net) in [ ], €15,866 (net) in [ ], and for 48 weeks in [ ] the sum of €11,709 gross (and therefore approximately €13,000 if [ ] had worked a full year in [ ]). The Applicant’s [ ] has been in receipt of Carer’s Allowance since [ ]. By [ ] the standard Carer’s Allowance payment had increased to €204 per week, and by [ ], it had increased to €244 weekly.
53. The Tribunal considers that the Applicant’s [ ] be compensated for a shortfall in [ ] income of approximately €6,000 per year for the five years from [ ] to [ ], taking in to account a small Reddy v Bates deduction and notwithstanding that the Applicant returned to third level education in [ ]. Accordingly, the Tribunal awards [ ] the sum of €30,000 for past loss of earnings. Total allowed: €30,000
54. As the Applicant continues his third level studies and his needs are in the domain of psychological support and supplemental strength and conditioning/physiotherapy, which the Tribunal is willing to support, the Tribunal is of the view that - on the basis that the Applicant can work independently, and any mobility and functionality issues he claims he may have are curtailed by lack of concentration, fatigue and motivation, which can be addressed by these psychotherapy and strength and conditioning supports, coupled with the Applicant’s engagement in education being an excellent form rehabilitation – the Applicant’s [ ] is not precluded from returning to work in the strong and thriving economy that prevails, and in particular in the field of [ ] work, as [ ]. On that basis, the Applicant’s [ ] for loss of future earnings has not been established.
55. Reference has been made to [ ] having PTSD in the Nursing Care Assessment Report. In the absence of any reference to this elsewhere in the Applicant’s application, and in the absence of a diagnosis of this psychiatric condition by a psychiatrist, this claim has not been established.
56. Any claim for retrospective care given by the Applicant’s [ ] is duplicated by a claim for [ ] past loss of earnings and therefore is not considered.
57. Paragraph 25 of the Scheme states that it is for an applicant to establish their claim. In the instant case the Tribunal accepts that the Applicant was the victim of a crime of violence and sustained traumatic injuries as a result of which he had to undergo emergency surgery to survive. The Tribunal accepts that this must have been a very difficult time for the Applicant and for all of his family, especially [ ], with whom he returned to live following his discharge from [ ] Hospital on [ ].
58. The Tribunal notes that upon review of the Applicant in [ ] Mr [ ] was very pleased with his continuing recovery at that stage. Mr [ ] acknowledged in his most recent review of the Applicant that his main issues were psychological sequalae arising from the assault/injury. It is regrettable that supporting information/documentation on the myriad of support services and rehabilitation services that the Applicant availed of in the months and years following the assault, and indeed materials relating to the pre-assault work history of the Applicant, have not been furnished to the Tribunal, to allow it consider all matters that may have been of relevance to the Applicant’s claim.
59. By all accounts, the Applicant made a remarkable recovery from his injury and despite suffering from some residual issues, predominantly psychological, such as anxiety, anger, lack of motivation, he nonetheless has gone on to achieve considerable academic success, being accepted onto a degree course at university and studying serious academic subjects. Furthermore, as a [ ] and attendee at university-related functions he has shown remarkable fortitude and strength. For all of that, the Applicant has to be warmly commended. As noted by Occupational Therapist [ ] [ ], the value of education as a rehabilitative tool is not to be underestimated and the Applicant himself appears to stand with that approach to his life. The Disability Support Services that the Applicant has, and will continue to be entitled to as long as he remains in third level education, come after many rehabilitation opportunities that the Applicant availed of post-emergency surgery in [ ]: from inter alia, [ ] Hospital and [ ] Hospital, [ ] [ ] Support Accommodation, the HSE, Disability Support Services from the University of [ ], and perhaps others. In continuing with his studies, the Applicant’s opportunities into the future will have expanded considerably and should enhance both his rehabilitation and prospects for his livelihood, when he returns to the employment arena with greater choices in his chosen fields of work into the future.
60. The Tribunal must apply the terms of the Scheme. The Tribunal makes the following award:
(1) Loss of past Earnings [ ] – €30,000
(2) Psychological supports for Applicant - €10,000
(3) Physio/strength and conditioning services - €5,000
(4) Ergonomic Desk, computer and chair for studies - €5,000
(5) Out of pocket Expenses - €3,250
(6) Reports:
Mr. [ ] €450
The Tribunal is prepared to allow for Occupational Therapist [ ] [ ]’s Report which it found helpful in parts, notwithstanding that Ms [ ] had not been provided with the necessary background information - €3,000
Similarly, the Tribunal is prepared to pay for the Report of [ ] [ ],
Neuropsychologist, though this has not been vouched, the Tribunal awards - €1,000
61. The Tribunal is not prepared to rely upon either the Nursing Care Assessment Report nor the Actuarial Reports furnished with this application by the Applicant’s legal advisors. The Tribunal did not authorise nor commission these reports: it does not consider that they adequately reflect the Applicant’s claim and therefore it is not prepared to underwrite the costs for same.
Total award: €57,700
The Tribunal wishes the Applicant well into the future with his recovery and his studies.
Nora Pat Stewart
Dated: 29 September 2022